
    AARON B. COHU, as Executor, &c., Respondent v. JOSEPH HUSSON, Appellant.
    
      Plaintiff—executor, as to costs against on verdict of jury when a set-off is pleaded,—Construction of answer on question of costs, as to whether it sets tip a counter-claim or set-off.
    
    Where, in an action brought by a plaintiff as executor, defendant answers, among other things, a set-off, and there is a general verdict for the defendant, he is entitled to have his costs taxed and to have inserted in the judgment an award of them in his favor against the plaintiff. §§ 3246— 1835 and 1886, have no application to such a case.
    Where matter is pleaded both as a counter-claim and as a set-off, and the prayer prays a dismissal of the complaint, and for judgment against the plaintiff on the counter-claim and set-off for the amount thereof, yet if the averments can only sustain the defence of set-off, the answer will be regarded on the question of costs as setting up a defence of set-off only.
    The question as to whether the costs so awarded by the judgment should be paid by the estate, or by the plaintiff personally, not being before the court, was not passed on.
    Before Sedgwick, Ch. J., and Dugro, J.
    
      Decided March 5, 1889.
    The action was commenced by one Edward Ralph. The complaint counted on a promissory note for $750, made by defendant to the order of Henry S. Cohu, dated December 11, 1878, payable four months after date, and alleged that prior to the commencement of the action said Cohu died intestate, and letters of administration were duly issued to certain persons who prior to the commencement of the action, and after the maturity of the note, assigned and transferred it to the plaintiff. A supplemental complaint was pursuant to an order in that behalf made, served by Joseph S. Cohu, averring that Edward Ralph had died subsequent to the commencement of the action ; that letters of administration were duly issued on his estate, and that the administrator had, subsequent to the commencement of the action and after the maturity of the note, assigned and transferred it to him, Joseph S. Cohu, for value.
    The defendant, by his amended answer to the original complaint and his answer to the supplemental complaint, set up, among other things, “ as and for a third defence and by way of counterclaim and set-off,” a promissory note for §1,000, made and delivered by said Henry S. Cohu to him, bearing date the first day of June, 1878, payable six months after date, alleged that said note remained wholly due and unpaid, and insisted that it was in his hands a valid subsisting set-off against the note sued on.
    The prayer of this answer was that the complaint be dismissed, and that defendant have judgment on this counterclaim and set-off for §1,000, with interest and costs.
    After this Joseph S. Cohu died leaving a will appointing the present plaintiff Aaron B. Cohu executor, and an order was made on application of the counsel for Aaron B. Cohu, substituting him as executor of the will of Joseph S. Cohu as plaintiff, in place and stead of Joseph S. Cohu, reviving and continuing the action in the name of Aaron B. Cohu, as executor of the will of Joseph S. Cohu, and restoring the action as so revived to the day calendar for trial with the same force and effect as if said action had been instituted in the first instance in the name of the substituted plaintiff. Thereafter the issues joined were tried before the court and a jury, and the trial resulted in a general verdict for the defendant. Defendant presented a bill of costs to the clerk and requested him to adjust it and insert the adjusted amount in the judgment. The clerk refused to tax the bill without a certificate under §§ 1835 and 1836 of the Code, to which refusal the defendant excepted. Defendant then moved at special term for a review of the clerk’s ruling, and for an allowance of the bill of costs. The court at special term denied the motion, writing as follows : “ The plaintiff did not recover in this action because the defendant had a counter-claim against him as executor, that was as large as his claim against the defendant. Costs cannot be recovered against the plaintiff under §§ 1835 and 1836 of the Code of Civil Procedure, because no judgment for a sum of money only has been rendered against him in his representative capacity (§ 1835), and no demand was made as required by § 1836, before the commencement of an action. Section 1836 contemplates that before costs should be awarded against an executor there shall have been a demand for payment of the claim and a refusal of the executor to comply with such demand. There is no evidence before me of such demand and refusal. Section 3246 does not enlarge the defendant’s rights to costs. Motion denied without costs.”
    From the order denying the motion entered on this decision, the present appeal is taken by the defendant.
    
      Abram Kling, attorney and of counsel for respondent, argued:—
    I. Section 1835 of the Code provides that where judgment is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him. In this case an action was brought against the plaintiff in his representative capacity upon the note set forth by the defendant in his counterclaim, and upon which he succeeded. It will be seen upon an examination of section 506 of the Code, that a person may set up as a defence a counterclaim in an action brought by an executor or administrator in the same manner as if he has originally brought his action thereon against such executor or administrator, and he is not required,, under this section of the Code, to bring a separate action. It is therefore manifest that the defendant’s counterclaim under section 506 of the Code, and upon which he succeeded, is an action against the executor in his representative capacity as provided by section 1835 of the Code, and the same rule must prevail as if the defendant had brought an affirmative action against the plaintiff as executor.
    II. By section 1836 of the Code, before the defendant could succeed upon his claim set forth in his answer and be entitled to costs, he must show that his demand was presented within the time allowed by notice, or that the claim was unreasonably resisted or neglected, or that the defendant refused to refer the claim as prescribed by law, in which event the court will furnish a certificate as required by that section of the Code. In this case it is not pretended that Husson ever presented the note or that it was unreasonably resisted,- and no certificate was ever obtained from the judge before whom the case was tried, and the clerk properly refused to tax the costs as required by section 1836 of the Code. It has been held that a counterclaim is an affirmative cause of action in favor of the party pleading it, and it has the same effect as if an action had been brought by him against the executor or administrator. It has been urged that by section 3246 of the Code an action may be brought by or against an executor or administrator in his representative capacity, and costs must be awarded as by or against a person prosecuting or defending in his own right except as otherwise prescribed by sections 1835 and 1836 of the Code, which does not change the situation as claimed by the appellant.
    
      Edward P. Wilder, attorney and of counsel for appellant, argued:—
    I. Sections 1835 and 1836 have no application to this case; nor would a certificate under those sections be appropriate to this action. Those sections relate exclusively to actions against executors and administrators. This is not such an action. They relate to the punishment of executors, etc., who unreasonably' resist the payment of just claims against their deceased. No question of that sort’ arises here.
    The learned judge below asserts in his “Opinion” that the counterclaim was against the plaintiff as executor. An inspection of the defendant’s amended answer will show this to be error. The counterclaim was not even against plaintiff’s testator, Joseph S. Cohu—much less could it run against plaintiff as his executor. Neither plaintiff nor his testator was ever under any duty to pay the $1,000 note set up in the counterclaim. Nor yet was Ralph, their predecessor. No affirmative judgment for any sum of money could be rendered in this action against either the plaintiff as an executor, or any of his predecessors on this record. Hence no demand upon plaintiff would have been proper, and no right to costs could have grown out of such demand. The set-off if established, defeats the action, but it does not authorize an affirmative judgment against the assignee. Code, §§ 503, 506; Code, § 503, last clause. The Code provides precisely how such costs shall be taxed, and that the judgment for such costs shall run against the executor personally in form, but shall in fact be enforced only out of the estate which he represents. Code, § 3246. In this case such enforcement Avould be out of the estate of Joseph S. Cohu, the plaintiff, who purchased the note and this litigation from Ralph’s administrator.
    II. It is only in actions against executors and administrators, not in actions by them, that any exemption from costs is provided for. Fox v. Fox, 22 How. 453 ; Howe v. Lloyd, 9 Abb. N. S. 257; 2 Lans. 235. The statute applies to actions, not counterclaims or set-offs. And the action must have been commenced against the executor. If only revived and continued against him, costs follow a-verdict against him as a matter of course. Merritt v. Thompson, 27 N. Y. 225; Lemen v. Wood, 16 How. 285; Benedict v. Caffe, 3 Duer. 669 ; Mitchell v. Mount, 17 Abb. 213. A fortiori must this rule apply when an executor himself revives and prosecutes an action to ultimate failure and defeat. A plaintiff who sues as executor, on judgment being rendered against him, is liable for costs, either personally or to be paid by the estate, in all cases where one suing in his own right would pay costs. Curtis v. Dutton, 4 Sand. 719; Woodruff v. Cook, 14 How. 481; Columbian Ins. Co. v. Stevens, 37 N. Y. 536; 35 How. 101;- 4 Abb. N. S. 122 ; Feig v. Wray, 3 Civ. Pro. R. 159 ; 64 How. 391; Hood v. Hood, 12 Daly, 114.
    III. The action being one at common law for the recovery of money only, and plaintiff having failed to recover, defendant is entitled to costs, as of course. Code, § 3229.
   By the Court.—Sedgwick, Ch. J.

The action was upon a promissory note, made by the defendant. The plaintiff assumed to represent the estate of Joseph S. Cohu, deceased.

The answer, among other things alleged, that the amount of a certain note made by one Henry Cohu should be offset against the plaintiff’s demand. The defendant succeeded in establishing this, for reasons not necessary to consider. It is not material that Henry Cohu had died. It may be material to say, that the offset would not lead to a recovery of a judgment for any sum of money against the plaintiff representing Joseph S. Cohu, and that the defence of off-set was equivalent to a defence of extinguishment or payment.

The result was that the plaintiff failed to establish his action. As for that reason he was not entitled to costs, the defendant was entitled to them, unless the plaintiff was exempt from liability for costs because he was an executor.

The 3246th section of the Code says, that in an action brought by an executor, in his representative capacity, costs must be awarded as in an action by a person prosecuting in his own right, except as otherwise prescribed by sections 1835 and 1836. These last sections regulate only the award of costs in an action brought against an executor.

I think, therefore, that the clerk should have taxed the costs and have inserted in the judgment an award of them in favor of the defendant against the plaintiff. Section 3246 directs, as to whether the estate or the plaintiff personally, shall pay thém. This is not a question here.

The order should be reversed Avith $10 costs, and an order entered reversing decision of clerk, with proper directions to him.

Dugro, J., concurred.  