
    Patrick M. Carolan, Individually and as Executor, etc., of Neal O’Donnell, Deceased, Appellant, v. Anthony O’Donnell and Others, Respondents, Impleaded with Others.
    
      Costs in an action to establish a will — the action is at law — costs not awarded to a defendant where a verdict is directed for the plaintiff.
    
    An action brought under the provisions of section 2653a of the Code of Civil Procedure to establish the validity of a will, is, notwithstanding the injunctive relief granted in case the plaintiff succeeds, an action at law, and the successful party is alone entitled to costs or an extra allowance.
    Assuming such an action to be a suit in equity, and that the court may, in its discretion, award costs to an unsuccessful defendant, such discretion is a judicial one, the exercise of which is open to review by the Appellate Division, and the latter court will not sustain an award of costs and of an extra allowance to an unsuccessful defendant whose defense was so unmeritorious that the trial court directed a verdict for the plaintiff.
    
      Appeal by the plaintiff, Patrick M. Carolan, individually and as-executor, etc., of Neal O’Donnell, deceased, from so much of an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1905, as awards costs and allowances to the defendants O’Donnell.
    
      Joseph H. Fargis, for the appellant.
    
      Thomas Bracken, for the respondents.
   Patterson, J.:

The plaintiff appeals from an order awarding costs and disbursements and an extra allowance to the defendants O’Donnell, and directing that' they be paid out of the funds of an estate in the-hands of the plaintiff as executor. The action was brought under the provisions of section 2653a of the Code of Civil Procedure to-establish the validity of the last will and testament of one Neal O’Donnell, deceased. The plaintiff sued individually and as executor. On the trial a verdict for the plaintiff was directed by the court, thus establishing the validity of the will. After the rendition of the verdict the defendants O’Donnell moved for costs and an extra allowance and the order appealed from was on such motion made and entered.

It is claimed by the defendants O’Donnell that the action is one-in equity, and that costs and the award of an extra allowance were, therefore, within the discretion of the court; while, on the other hand, the appellant contends that the action is at law and that costs are allowable only to the prevailing party. We are inclined to, the opinion that, as suggested in Wallace v. Payne (9 App. Div. 35), this statutory action must be regarded as one at law. The mere fact that in a judgment to be entered in favor of a plaintiff in such an action an injunction shall issue restraining the ¡parties to such action and persons claiming under them subsequently to the commencement .of the action from bringing or maintaining any other action or proceeding, or from interposing or maintaining a defense in any action or proceeding upon a claim that an instrument is not the last will or codicil of a testator, does not necessarily make the action one in equity. The injunction is an incident and not the primary purpose of the action. If this view is correct it would follow that the successful party in this action, namely, the plaintiff, alone would be entitled to costs and an allowance. But, conceding this to be a suit in equity and that the costs were in the discretion of the court, still that discretion is a judicial one, and its exercise is open to review in this court. The learned judge below made the order appealed from upon the supposed authority of Dobie v. Armstrong (161 N. Y. 641), in which costs of the appeal in the Court of Appeals were allowed to both parties, payable out of the estate, and it is argued from this that the granting of the costs and an extra allowance must be within the discretion of the court. The court there seemingly did not pass upon the question discussed in the present case. An examination of the record in the Court of Appeals of the case cited discloses that the action of the court of first instance in granting costs and an extra allowance to the defendant Emmett Armstrong was based upon what may be regarded as the acquiescence of the plaintiffs, for. the judgment recites that the costs and allowance were so granted without opposition on the part of the plaintiffs, and as that record went to the Court of Appeals the costs and allowance to the defendant were part of the judgment affirmed by that court. Here, the exercise of the discretion was challenged from the outset, and on the papers now before us we are of the opinion that that discretion was not properly exercised in favor of the defendants O’Donnell. The proceedings on the trial are not before us. We have only the complaint and answers upon which the cause went to trial, and an affidavit of the attorney for the defendants O’Donnell. By the provisions of section 2653a of the Code of Civil Procedure, all tliat was required of the plaintiff was to introduce in evidence the will and the decree of the surrogate admitting it to probate. Thereupon it became incumbent upon the defendants to offer their evidence impeaching the will. It appears by the affidavit above referred to that the will was attacked on the ground of the want of testamentary capacity of the testator. The court directed a verdict for the plaintiff, thus adjudging that there was not enough evidence to go to the jury upon the issue raised by the defendants, or, in other words, that their case is without merit. There was nothing to submit to the jury. Under such a simple state of facts we are not able to perceive why a defendant with an unmeritorious case, the proof in which was utterly insufficient to disturb a decree of probate of a will, should be rewarded for making an unsuccessful contest. The estate should not be depleted where there is a failure to sustain an attack upon a will admitted to probate.

We are, therefore, of the opinion that the order appealed from should be reversed, with ten dollars costs and disbursements.

O’Brien, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  