
    CLARKSON v. ROOT.
    
      N. Y. Supreme Court, First District, Chambers ;
    
    
      March, 1887.
    1. Costs in an action against an administrator.] Costs cannot be allowed in an action against an executor or administrator who has published the statutory notice requiring all creditors to present claims, unless the claim upon which the action was brought was presented within the statutory limitation, although the trial judge certifies that in his opinion the payment of the claim was unreasonably resisted and neglected.
    
      % The same; actual knowledge of the publication.] The rule is not altered by the fact that the creditor was unaware of the publication of notice to present claims, until the statutory period allowed therefor had expired.
    
      Motion by the plaintiffs for an order allowing costs against the defendant as administrator.
    Tills action was brought by the plaintiffs, James Clark-son, and others, against the defendant, Edwin B. Boot, as administrator, &e., of Mary Ann Graham, deceased, for work done upon the premises formerly in the occupation of the deceased. Plaintiff recovered judgment after a trial. It appeared upon this motion for costs, that the claim was not presented within the statutory limitation, owing, as was claimed, to the plaintiff’s ignorance of the publication of the advertisement to present claims made by the temporary administrator; that the claim had been presented and rejected, and that defendant had refused to refer it under the statute.
    The certificate of the justice before whom the cause was tried, which was part of the motion papers, certified that the defendant produced no witnesses upon the trial, though he introduced some evidence, and that he directed a verdict on the evidence for the plaintiff ; that the facts of the presentation of claim and rejection, and refusal to refer the claim were admitted by the pleadings, and that, in his opinion “ the payment thereof was unreasonably resisted and neglected.”
    
      Joseph Fettretok (.Fettrecth, Silkma?i <& S&ybel, attorneys), for the plaintiffs, and the motion,
    contended that costs should not be denied merely for failure to present within the statutory time because of plaintiff’s ignorance of the fact of the advertisement to present claims; and because it appeared also that the defendant had not accounted and was in the possession of ample funds, and had been found by the trial justice to have unreasonably resisted and neglected the payment of the claim, relying mainly upon Field v. Field, 17 N. Y. 294.
    
      Donald MoLern, for the defendant, opposed..
   Pattersoh, J.

This motion must be denied. It was held in Horton v. Brown (29 Hun, 654) that costs cannot be allowed in an action Against an executor who lias published the statutory notice requiring all creditors to present claims unless the claim upon which the action was brought was presented within the statutory limitations and the executor unreasonably resisted or neglected to pay. In other words, two things must concur—first, the presentation within the time limited, and the unreasonable resistance or delay.

In this case Judge Beaoii certifies that in his opinion the claim was unreasonably resisted ; but it is quite evident it ivas not presented within the statutory limitation. Field v. Field (77 N. Y. 294, 296) seems by the head-note to decide differently; but Judge Pratt has clearly pointed out in Horton v. Brown, that from “ a careful reading of that case no such decision was intended,” and such is my belief after reading the opinion of Church, Ch. J.

The motion is denied, without costs. 
      
       The order entered, simply denied the motion, the court refusing to sign an order presented, which, in addition provided: “Nothing herein contained to prejudice the plaintiffs’ right to tax and recover their disbursements herein.” See Code Civ. Pro. § 3256.
     