
    Jacob Rauth, Resp’t, v. William B. Davenport et al., Ex’rs, App’lts.
    
      (Supreme Court, General Term,, First Department,
    
    
      Filed April 14, 1892.)
    
    Executors and administrators—Costs.
    Where the action against an executor or administrator is one to recover unliquidated damages, and the amount is reduced from $3,000 to $300, the refusal of the executor or administrator to pay the claim cannot be held to be unreasonable so as to entitle the plaintiff to costs.
    Appeal from an order allowing costs to the plaintiff, and from the part of the judgment directing the recovery of costs.
    
      Charles H. Otis, for app’lts ; Alberti. Sire, for resp’t.
   O’Brien, J.

As shown by its title, this is an action against executors, which after a trial resulted in a verdict for plaintiff, for which in addition to costs and an allowance he was permitted to take judgment.

From so much of the judgment as granted costs and allowance this appeal is taken, and inasmuch as the action of the court was based on a stipulation made between the parties, which recites the facts, it is necessary to set forth the same at length.

This stipulation was as follows: “ On or about the 18th day of March, A. D., 1889, the .plaintiff commenced an action against William B. Davenport, as executor of the last will and testament of Samuel Cardwell, Jr., to recover damages occasioned by the rain coming upon the plaintiff’s property as described in the complaint in this action; that the said action was tried, the complaint dismissed, went to the general term, and a new trial ordered by the general term; that the second trial came on in June, 1891, before Hon. Charles H. Truax and a jury, and the complaint was dismissed on the ground that the wrong party had been sued; that the said William B. Davenport and Sophia Cardwell are executors of the last will and testament of Samuel Cardwell, Sr.; that this action was commenced in the month of July, A. D., 1891, to recover the sum of three thousand dollars ($3,000) for the same damages claimed in the prior action against William B. Davenport, as executor of the last will and testament of Samuel Card-well, Jr., and has now resulted in a verdict for the plaintiff for the sum of three hundred dollars ($300) damages; that no claim has ever been presented either to William B. Davenport, as executor of the last will and testament of Samuel Cardwell, Jr., or to William B. Davenport and Sophia Cardwell, executors of the last will and testament of Samuel Cardwell, Sr., or to either of them, except that an oral demand was made, and in so far as a presentation of the said claim was involved in the bringing of the actions above recited; that the defendants in this action or either of them have never offered or refused to refer the claim of the plaintiff as prescribed by law.’’

Sections 1885 and 1836 of the Code prohibit the allowance of costs unless the claim against the estate was duly presented or the payment thereof unreasonably resisted, or the defendant refused to refer as prescribed by law, either of which conditions existing the court may in. its discretion adjudicate costs in favor of the plaintiff. Hopkins, Jr., v. Lott, 20 St Rep., 130.

The general rule therefore, is, that costs shall not be awarded against executors, and it is only in cases where one of the conditions has been fulfilled by the plaintiff that the court has power to award costs.

The stipulation shows, as luett as the conclusion of the learned trial judge, that two of the three conditions essential to awarding costs were wanting in this case, namely, the presentation of plaintiff’s demand to the executors and the refusal of the executor to refer the claim.

This leaves the third, which was the ground upon which the court based its action, namely, that it appeared that the payment of the claim was unreasonably resisted or neglected by the defendants. To sustain this conclusion it was necessary that the facts should show not only that the claim was presented, but also that the executors unreasonably resisted or neglected its payment

When we consider the fact that the same attorney who appears here also appeared in the former action brought' against the executors of plaintiff’s original lessor, and- that upon such trial the nature, character and extent of the claim were developed, and knowledge thereof brought to these defendants, coupled with the fact that the stipulation itself concedes that an oral demand was made, these together, we think, would have justified the conclusion of the learned court that the claim was presented, it not being absolutely essential, to comply with this condition, that a formal claim should have been presented. Taking, however, the character of the claim itself, it being one for unliquidated damages for injuries to property, caused by water coming through a roof, and the fact that the claim made of $3,000 was reduced by the recovery had to $300, it cannot be claimed that a failure to pay the original amount was unreasonably refused or neglected.

It is to be regretted that in a case presenting the facts such as appeared in this action we cannot find authority to support the conclusion reached by the learned trial judge, for after considering the amount of time and labor, and the action pursued by the same attorney who appears here for the defendants, and who appeared in the former trial for the executor of decedent’s assignor, in withholding knowledge of the real owners of the property, which necessitated the several trials and required the plaintiff, without fault on his part, from want of knowledge as to the real party in interest, to pay costs almost equal in amount to the recovery here; these considerations, were it the question of the exercise of a discretion vested in a judge, would here have been rightly and justly exercised in granting costs and allowance.

We have been referred to some cases wherein it was held that some slight difference in the amount claimed and the amount recovered did not prevent the granting of costs, but we have found none where, as here, the action was one to recover unliquidated damages, and the amount was reduced from $3,000 to $300 as the result of resistance, that such action on the part of the executors in not paying the claim was held to be unreasonable. We regard the law as well settled by a long line of authorities, that when a claim against "the estate of a deceased debtor is materially reduced upon the trial, the resistance made by the executor is not unreasonable. Considering, therefore, the nature of the claim itself, and the material reduction obtained, we are of opinion, as matter of law, that the court was without power to award costs and grant the allowance, and for this reason solely the order and so much of the judgment appealed from should be reversed, without costs.

Yak Brukt, P. J., and Ingraham, J., concur.  