
    Nettie Cornwell and Levi Cornwell, Respondents, v. Benjamin Sheldon and Stephen F. Avery, as Executors, etc., of Leonard Sheldon, Deceased, Appellants.
    Third Department,
    September 15, 1909.
    Executors and administrators — costs in action against executors — failure to present claim — motion and order — striking unwarranted costs from judgment — loches. — when executors not entitled to costs.
    A plaintiff suing executors is not entitled to costs where the claim was never presented to the defendants although they published a notice requiring creditors to present their claims, and it appears that the claim was not unreasonably resisted in that the plaintiff, although claiming $700 damages, recovered but §175.
    
      The fact that there were negotiations with the executors concerning the claim and that a letter was written in behalf of the plaintiff is not equivalent to the formal presentation of a demand required by section 1836 of the Code of Civil Procedure.
    Where the action was brought in the Supreme Court and the trial j ustice did not make the certificate required by section 1836 of the Code of Civil Procedure, but the plaintiff included costs in the judgment on a verbal statement of the judge that she was entitled thereto, the fact that the judgment was affirmed on an appeal by the defendant does not bar a subsequent motion to strike the unauthorized costs from the judgment, for the question of costs was not brought up for review. .
    As section 767 of the Code of Civil Procedure requires the direction of a court or judge to be made in writing unless otherwise specified in the particular case, a mere verbal statement of the court at the close of the trial that the plaintiff is entitled to costs against executors, not followed by a formal order to that effect, is of no avail.
    A motion to strike unwarranted costs from a judgment against executors will not be denied for loches if the plaintiff has not been prejudiced by the delay, for the motion attacks the judgment on its merits in so far as it awards costs, and does not relate to a mere irregularity.
    Appeal by the defendants, Benjamin Sheldon and another, as executors, etc., from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Columbia on the 12th day of April, 1909, denying the defendants’ motion to strike from a judgment theretofore entered herein the costs against them contained in said judgment, and to allow costs in their favor.
    
      William Wallace Chace and S. F. Avery, for the appellants.
    
      John L. Crandell, for the respondents.
   Cochrane, J.:

Plaintiffs were awarded a verdict of $175 at the trial of this action, which was instituted to recover $700 damages for a breach of covenant contained in a deed of a farm conveyed by defendants’ testator to the plaintiff Nettie Cornwell. At the trial it appeared ‘that she had conveyed her interest in the farm to her husband, Levi Cornwell, and an order was then entered making him a party plaintiff with his wife, and the trial proceeded. The judgment is in form in favor of both plaintiffs. Costs were taxed in favor of the plaintiffs and were included in the judgment. The judgment being for a sum of money only was entered directly by the clerk.

The defendants appealed from the judgment to this court, where the judgment was affirmed (127 App. Div. 931). Thereafter the defendants moved at Special Term to strike from the judgment the costs therein contained and for.an award of costs in their favor. From an order denying such motion they again appeal to this court.

The right of plaintiffs to costs depends on sections 1835 and 1836 of the Code of Civil Procedure. Although these defendants published a notice as prescribed by law requiring creditors to present their claims, it does not appear that the demand constituting the subject of this action was ever presented by the plaintiffs within the meaning of the Code provisions above cited. There were some negotiations, and a letter was written in behalf of the plaintiff Tfettie Cornwell, but there was nothing to indicate to the defendants the formal presentation of the demand such as is contemplated by said section 1836. The summons was served about one month after such letter was written, and there was no rejection or scarcely an opportunity to reject the demand even if such letter could be deemed the presentation thereof. And the material reduction of the claim precludes the idea of unreasonable resistance. The costs were taxed and included in the judgment.without the certifícate of the judge before whom the trial took place as required by said section 1836, and from the facts before us it is clear that no such certificate could properly have been granted. Plaintiffs have absolutely failed to establish their right to costs.

The appeal from the judgment constituted no barrier to the subsequent motion to strike the costs from the judgment. That appeal did not bring up for review the question of costs. (La Grange v. Merritt, 96 App. Div. 61; Cunningham v. Hewitt, 84 id. 114.) In the case last cited it was said: The appellant further complains that costs were taxed in the judgment without the certificate of the trial judge that the plaintiff’s claim was unreasonably resisted; but such costs were taxed without objection. There was no motion made in the court below to strike them from the judgment. If such a motion had been made, the plaintiff might have applied for and obtained such a certificate from the trial judge. Without objection made in the court below, this question cannot, for the first time, be raised upon this appeal.” In the present case, as we have seen, the certificate could not properly have been granted, and never has been granted, even on the motion resulting in the order under review. The case differs from those cited by the respondents, where there had been a determination as to a particular question whether of the right to costs or otherwise, and it was held that such determination could not be changed except by appeal. There is nothing in this case to show that the right of plaintiffs to costs has ever been adjudicated except by the order we are now reviewing.

It is true that at the close of the trial the court stated plaintiffs might have costs. No formal order to that effect, however, was entered, and we cannot ascribe any efficacy to such informal statement. It is declared by section 7G7 of the Code of Civil Procedure as follows: “A direction of a court or judge made as prescribed in this act in an action or special proceeding must be in writing unless otherwise specified in the particular case. Such a direction unless it is contained in a judgment is an order.” Had the plaintiffs entered an order for costs the defendants could have appealed directly therefrom and would not have been put to the necessity of making an independent motion to get relief. If what occurred at the trial was equivalent to a formal determination that plaintiffs were entitled to costs so as to present that question on the appeal from the judgment we should on that appeal have stricken out the costs.

Nor have the defendants by loches lost their right to relief. Their motion attacked the judgment not merely for an irregularity, but on its merits so far as it awarded costs. Plaintiffs have not been prejudiced by the delay and there is no reason why defendants should suffer because of their harmless delay in correcting the plaintiffs’ mistake.

The defendants, however, were not entitled to the costs of the action and to that extent their motion was properly denied.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, without costs, to the extent of striking from the judgment herein the costs against defendants.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, to the extent of striking from the judgment the costs against defendants.  