
    John Mullen, as Administrator, etc., App’lt, v. James Guinn, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    1. Executors — Liability for costs.
    Where an action is brought in the name of an administrator to recover-as such upon a cause of action that arose after the death of the decedent, the plaintiff is personally liable for costs if he is defeated in the action.
    2. Same — Section 3246 of the Code.
    Section 3246 of the Code has application only to cases where the cause-of action arose-in favor of the deceased, and not to causes of action irn L favor of the executors or administrators personally.
    Appeal from an order, directing that judgment be entered personally for the amount of a verdict in favor of defendant.
    
      Frank H. Robinson, for app’lt; L. C. Van Fleet, for resp’t.
   Ward, J.

— The plaintiff, as administrator, instituted an action-in this court, and the complaint contained two causes of action,, one for services rendered by the decedent for the defendant, and the other to recover for some personal property that had been taken by the defendant from the administrator after the death of the decedent, and which had been his property; the plaintiff' waiving the tort, and seeking to recover upon the implied contract for its value. This was the second cause of action. The defendant answered by certain denials, and alleged counterclaims to both causes of action ; the counterclaim alleged to the second cause being that the defendant, after the death of the decedent, and before the commencement of the action, had paid funeral expenses of the deceased, who was his father, to the amount of $90, for which he demanded judgment.

The cause was tried at the Steuben circuit, in April, 1894, and upon the trial the plaintiff was nonsuited as to the first cause of action. As to the second cause of action, the court held that the evidence was sufficient to establish a portion of the plaintiff’s claim, and to the amount of $47.50; that thereupon the plaintiff admitted in open court that the defendant had paid the funeral expenses of the deceased to the amount of $90. The defendant gave no evidence whatever, and the court passed upon the whole question as one of law, and holding that the fumerai expenses paid by the defendant were a proper counterclaim to the second-cause of action, and deducted the $47.50 from the $90 funeral expenses, and directed a verdict in favor of the defendant for $42.50-The affidavit of the defendant’s attorney discloses that on the 7fh day of May, 1894, the defendant entered judgment against the-plaintiff, personally, for $42.50 damages, and $104.55 costs, and an execution was issued thereon, and in Jnly following a motion, was made at the Rochester special term, by the plaintiff, to set-aside the judgment, and the parties upon the hearing of the motion stipulated that the judgment be set aside without prejudice to the rights of the defendant to move for the order here appealed from, with the right to the plaintiff to raise any question of lacheswhich might exist as to the making of such motion.

The plaintiff now contends, first, that the defendant has been guilty of such delay and loches in making this motion as deprive him of the right tb the order he has obtained. We think the papers before us sufficiently excuse the delay.

The appellant also contends that the motion should not have been entertained by the special term, without the certificate of the judge presiding at the trial, setting forth the facts and what, took place upon the trial, and that affidavits alone were not sufficient. We cannot sustain this contention, because the affidavits-set forth clearly and without dispute what occurred upon the trial, and the pleadings before us show that the second cause of action was one arising after the death of the intestate, and was for a. cause that accrued to the plaintiff individually, and not as administrator, and it has been settled by a long line of cases that where-an action is brought in the name of an administrator, and claiming to recover as such upon a cause of action, that arose after the death of the decedent, though concerning the property of the decedent, it is a cause of action in favor of the plaintiff individually, and he is liable for costs if he is defeated in the action (Buckland v. Gallup, 105 N. Y. 458; 8 St. Rep. 56; Thompson v. Whit-marsh, 100 N. Y. 35; Holdridge v. Scott, 1 Lans. 303; Ketchum v. Ketchum, 4 Cow. 87; Lyon v. Marshall, 11 Barb. 241; Hees v. Nellis, 65 id. 440; Ackley v. Ackley, 50 St. Rep. 544, and cases cited); and judgment for costs may be entered in clear cases without application to the court (cases above cited).

Application was made by the defendant, to the judge granting this motion, for a certificate, he being the same judge who presided at the trial, and was refused, upon the ground that, as the liability for costs clearly appeared from the papers presented, the certificate was unnecessary. The affidavits on the part of the plaintiff disclose that the action was brought in good faith, and under section 3246, Code Civ. Proc., which provides that in an action brought by or against an administrator or executor in his representative capacity costs must be awarded as in an action by or against a person prosecuting or defending in his own right, except, as otherwise prescribed in sections 1835, 1836, “but they are exclusively chargeable upon and collectible from the estate, fund or person represented unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.” The plaintiff claims that he cannot be made personally liable for costs unless he has been guilty of bad faith ór mismanagement. This would probably be so i£ his case came within this section. We conclude that this section has application only to cases where the cause of action arose in favor of the deceased, and not to causes of action in favor of executors or administrators personally.

The practice of obtaining leave of the court, by motion, to enter personal judgments of this kind has been sanctioned by the courts, although in many cases unnecessary. Tilton v. Williams, 11 Johns. 403 ; Reynolds v. Collins, 3 Hill, 441; Barker v. Barker, 5 Cow. 267; Burhans v. Blanchard, 1 Denio, 626; Bostwick v. Brown, 15 Hun, 308. In Tilton v. Williams, supra, and Barker v. Barker, supra, the declarations contained several counts, some alleging a cause of action arising in the lifetime of the decedent, and others ¿afterwards, and the plaintiff was, held personally liable for costs on .account of his failure to recover upon the causes of action arising after the appointment of the plaintiff as personal representative. The Code permits, indeed encourages, the joinder of causes of action in certain cases, but each cause has all the elements and attributes of an independent cause of action. This scheme of the -Code finds strong confirmation in section 3235, providing as to •costs where a plaintiff succeeds upon one cause of action and a defendant upon another; and in disposing of the question raised by this appeal we treat this second cause of action and all its incidents the same as if it were the only one alleged in the complaint ••and disposed of at the trial.

The appellant also contents that the trial court was not justified in directing a verdict for the defendant for the funeral expenses, ¿after deducting the amount found due the plaintiff on the second cause of action, as it was not a proper counterclaim, and therfore it was error for the court to make the order appealed from, directing that a judgment be entered against the plaintiff, personally, for the balance of such funeral expenses. If there was error in that regard it cannot be considered here, and can only be reached upon an appeal from the judgment, and in a direct proceeding ¿authorized by law to correct this error. We take the verdict as we find it, and assume it to be correct upon this appeal.

The trial court held that the sum of $42.50, which remained -due the defendant after the sum of $47.50 found in favor of the plaintiff upon his personal cause of action, had been absorbed by the defendant’s counterclaim, was a claim against the plaintiff individually and as we understand the papers, directed a verdict against him individually for that amount. There was no error, therefore, in the order appealed from providing that the amount of the verdict together with the costs should be charged against the plaintiff personally.

The order appealed from should be affirmed, with ten dollars costs, and the proper disbursements of the respondent upon the ¡appeal.

All concur.  