
    Burt D. Harrington and Susan Gorden, as Executors and Trustees of the Last Will and Testament of William Gorden, Deceased, Appellants, Impleaded with Stephen M. Hoye and Joseph Gorden, as Executors and Trustees of the Last Will and Testament of William Gorden, Deceased, Respondents, v. William L. Strong, as Mayor, and Others, Respondents.
    
      Costs against executors personally — to be determined on a motion at Special Term — an unsuccessful appeal by executors from a decision of the Appellate Division— it does not establish bad faith or mismanagement.
    
    The question whether the costs of an unsuccessful appeal to the Court of Appeals hy executors should be charged against two of the executors personally, or against the estate, should be determined on a motion at the Special Term of the Supreme Court, where that was the court of original jurisdiction, and not on the final accounting of the executors before the surrogate.
    The refusal of the executors to acquiesce in an adverse determination by the Appellate Division, although the correctness of such determination was quite clear, does not establish that they were guilty of bad faith, or mismanagement in the prosecution of the appeal, within the meaning of section 3246 of the Code of Civil' Procedure.
    Appeal by Burt D. Harrington and Susan Gorden, as executors and trustees of the last will and testament of William Gorden, deceased, from an order of the Supreme Oourt, made at the Kings County Special- Term and entered in the office of the cleric of the county of Kings on the 23d day of December, 1899, denying their motion to amend a judgment for costs, in favor of the East River Bridge Company, so as to provide that Stephen M. Hoye and Joseph Gorden, the other two executors and trustees of said will, be adjudged to pay personally the costs of the action in the Oourt of Appeals.
    
      George W. McKenzie [George P. Beebe with him on the brief], for the appellants.
    
      Stephen M. Hoye, respondent, in person.
    
      William P. Pickett, for the respondent Gorden.
    
      T. Ellett Hodgskin, for the- respondent, the East River Bridge Company.
   Goodrich, P. J.:

William Gorden authorized Stephen M. Hoye, an attorney, to commence a taxpayer’s action in his name, to restrain the East River Bridge Commission from purchasing the franchise owned by the East River Bridge Company for a bridge across the East river. The action coming on for trial, the complaint was dismissed, with costs against the plaintiff, and an allowance of $2,000 was made,, which, on appeal to this court, was reduced to $500. An appeal was taken to the Court of Appeals on April 15, 1897, and, on January 2, 1899, Gorden died, leaving his last will, in which Susan Gorden, Burt D. Harrington, Stephen M. Hoye and Joseph Gorden were named executors. All subsequently qualified.

On motion of the defendant, the East River Bridge Company,, the action was revived by the Court of Appeals, although the executors appellant objected to such revival (158 N. Y. 407). That court subsequently affirmed the judgment, with costs (160 N. Y. 659). Subsequently, a motion was made in the Court of Appeals, by Susan Gorden, as executrix, that the costs of the appeal to that court be awarded against Hoye and Joseph Gorden, as executors, personally, and not against the estate. This motion was denied upon the ground that the question raised should be determined by the court of original jurisdiction (160 N. Y. 696). Judgment was entered thereafter on such affirmance, against all the executors, and a motion was made at Special Term by the appellants herein to-have the same amended so as to adjudge only Hoye and Joseph Gorden personally liable for the costs in the Court of Appeals. The court denied the motion and from such order this appeal is-taken.

The defendant, the East River Bridge Company, claims that any controversy between the executors in respect to costs should be-adjusted on the judicial accounting before the surrogate. With this contention we are unable to agree.

The question of who shall bear the costs of the litigation is one that belongs to the Supreme Court, and its determination cannot properly be devolved upon the surrogate. _ Indeed, this point appears-to have been expressly decided by the Court of Appeals, which denied the motion to charge Stephen M. Hoye and Joseph Gorden personally with the costs, upon the express ground that the question raised on that motion should be determined by the court of original jurisdiction (160 N. Y. 696). This court, however, is without authority to charge these executors personally with the costs unless it is willing to declare that they have been guilty of mismanagement or bad faith in the prosecution of the action. (Code Civ. Proc. § 3246.) While we think that the case for the defendants was so clear that all the executors might well have acquiesced in the adverse determination of the Appellate Division, we are not prepared to go so far as to say that those who insisted upon a further prosecution of the appeal acted in bad faith, or that their conduct amounted to mismanagement within the meaning of the section cited. It can make no difference to the appellants whether judgment is entered against them or not, if the costs are to be paid out of the estate and not by any of the executors personally; and, therefore, the order of the Special Term was right and should be affirmed.

All concurred.

Order affirmed, without costs.  