
    HOWE against LLOYD.
    
      Supreme Court, Third District; General Term,
    
    
      March, 1870.
    Costs against Executors and Administrators.— Irregular Motion.—Appeal.
    Costs are not. recoverable, as a matter of course, against an executor or administrator, to be levied of the assets of the deceased.
    The provision of section 317 of the Code of Procedure,—allowing costs in actions by or against executors or administrators,—is to be construed in connection with section 41 of 2 Bev. 8tat., p. 80,—which restricts its application to cases where the executor or administrator is a plaintiff, and fails to recover. Where the action is against executors or administrators, no costs can be recovered without the order of the court.
    
    The case of Murray v. Smith, 9 Bosw., 689, disapproved.
    The taxation of costs against an executor or administratsr, without order of the court, in a case where the statute requires such order to entitle the party to costs, is a substantial defect in the judgment, which entitles the representative to relief; and is not an irregularity which is waived by an appeal; especially where the costs were adjusted after the appeal was taken.
    Serving an offer to allow judgment to be entered for a specific sum “ with costs,” is not such a recognition of liability for costs, as to preclude the party from claiming that they can only be awarded on an application to the court, especially where the offer is refused by the adverse party.
    
      On appeal from an order of the special term, setting aside a judgment because it included costs, in a case in which costs could not, under the statute, be awarded, without application to the court, the order will not be reversed on the ground that the case was a proper one for costs, but the party will be left to his motion.
    A judgment which is erroneous in respect to costs, by reason of having been entered without application to the court, in a case where costs could only be awarded by order of the court, should not be wholly set aside on that ground, but the costs only may be struck out, without prejudice to an application to the court to allow costs.
    Appeal from an order.
    This action was brought by Eliza Howe, plaintiff and appellant, against Margaret Lloyd, executrix of Alexander 0. Lloyd, defendant and respondent. It now came before the court on an appeal from an order made at special term by Mr. Justice Hogkeboom, setting aside a judgment in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents damages, and one hundred and fifty dollars and sixty-nine cents costs.
    The order sets aside the judgment absolutely, damages as well as costs, although plaintiff’s counsel insisted specially, the judgment was, in any event, regular as to the damages, and, as to those, should not be set aside.
    The action was commenced against defendant, as executrix, in May, 1868. The defendant afterwards offered to allow judgment to be taken for three hundred dollars and costs.
    
    The cause was referred to H. S. McCall, who, on October 21, 1869, reported in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents, the amount claimed. On October 23, 1869, one hundred and fifty dollars and sixty-nine cents costs were taxed for plaintiff, and re-taxed, on notice to defendant’s attorney, at that amount, October 30, 1869.
    On October 29,1869, the defendant duly appealed
    
      to the general term from the entire judgment, by filing the proper notice of appeal and undertaking in the clerk’s office, and serving copies thereof on plaintiff’s attorney.
    The defendant was, before the commencement of ' this action, presented with a copy of the claim, and payment demanded.
    
      After the appeal from the judgment was perfected on December 11, 1869, defendant’s attorney served a notice of motion for the December special term, 1869, to set aside the entire judgment, damages and costs, because plaintiff was not entitled to costs, as no motion had therefor been made. The motion was granted, and plaintiff duly appealed to the general term from the order.
    
      N. C. Moak, for the appellant.
    
      W. S. Paddock, for the respondent.
    
      
      But compare Fish v. Crane, Ante, p. 252, and note, and Smith v. Patten, Ante, p. 203, and note.
    
   By the Court. — Miller, J.

The plaintiff in this action claims that costs are recoverable as a matter of course against an executor or administrator, to be levied of the assets of the deceased. I think that this position cannot be maintained.

The Code, section 317, declares that in an action prosecuted or defended by an executor or administrator, &c.,” costs shall be recovered as in an action by and against a person prosecuting in his own right. “But this section shall not be construed to allow costs against executors and administrators where they are now exempted therefrom by section fifty-one” (2 Rev. Stat., 90).

This section of the Code is general in its character, and alone might be construed to establish a rule which places all representative parties upon the same footing as to costs, as those parties who are acting for themselves, except that it compels the estate to pay the costs, unless the court direct that they be paid by the executor or administrator personally, for mismanagement or bad faith in the action or defense. It must be considered,, however, in connection with section forty-one of the Revised Statutes, which restricts its application only to cases where an executor or administrator is a plaintiff, and fails to recover in the action.

This provision declares that no costs shall be recovered in any suit at law, against any executors or administrators, to be levied of their property, or of the property of the deceased, unless it appear that the demand upon which the action was brought was presented, &c., “and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same,” &c. The plain and manifest interpretation of the provision of the Revised Statutes cited is, that in cases where the action is against the defendants as executors or administrators, no costs can be recovered unless it be by order of the court. Such cases are expressly excepted from the provisions of section 317 of the Code. The Code was not intended to provide merely a personal exemption to the executor or administrator from liability for costs, and to hold the estate liable in all cases, but to leave the Revised Statutes in full force where an action was brought against an executor or administrator.

This construction has been generally followed by the courts in such cases, and, I think, is sustained by abundant authority.

The defendant in a suit brought by an executor or administrator is entitled to costs without a motion, when a successful defense is interposed (Woodruff v. Cook, 14 How. Pr., 481; Curtis v. Dutton, 4 Sandf., 719). But when actions are brought against an executor or administrator, and a judgment obtained, no costs can be recovered, unless the court, in the exercise of its powers, upon motion adjudge that it is a case in which costs should be paid, under the statute referred to, by the estate or its representatives (Fox v. Fox, 22 How. Pr., 453; Mersereau v. Ryerss, 12 Id., 390). The case cited by the plaintiff’s counsel (9 Bosw., 696), which holds that the estate is chargeable in cases where the plaintiff is successful in a suit against the representative, is a special term decision in conflict with the cases cited, and, I think, does not present a correct interpretation of the provision of the Code and of the Revised Statutes which has been referred to. In any aspect in which the question may be considered, I am of the opinion that costs cannot be recovered in an action against an executor or administrator, except upon an application by motion to, and an order of the court.

It is insisted by the plaintiff’s counsel that the defendant having appealed from the judgment after it was legally perfected, could not move to set it aside for irregularity. I incline to think that the taxation of the costs without the authority of the court, and their insertion in the judgment roll, was rather more than a technical irregularity.

It was not a mere formal error, but the adjustment and allowance of an amount of money not authorized by law, and a substantial defect in the judgment, which, if it did not render the judgment void, should entitle the party to some relief (1 Burr. Pr., 474). The rule that irregularities may be waived by an appeal, has never been applied to a case like this; and the authorities cited to sustain the doctrine contended for, are cases of technical and formal defects which do not affect or impair the validity of the entire judgment or proceeding (Cotes v. Smith, 29 How. Pr., 331; Mayor v. Lyons, 1 Daly, 300; Clumpha v. Whiting; 10 Abb. Pr., 448; D’Ivernois v. Leavitt, 8 Id., 60; Vail v. Remsen, 7 Paige, 206; Brady v. Donnelly, 1 N. Y. [1 Comst.], 126).

But even if this motion may be regarded as founded upon an irregularity alone, inasmuch as the costs were not readjusted until after the appeal had been taken, I am inclined to think that the appeal could not affect the subsequent proceeding upon the readjustment.

It may also be added that the courts indulge great liberality in disregarding mere technical irregularities when they intefere with the promotion of justice; and parties are frequently allowed to come in after being irregular, upon terms, and to present them case. In this case, the special term made it a condition of allowing the defendants to make a motion to vacate the judgment that he pay the costs of opposing the motion, and thus inflicted a penalty for the alleged irregularity.

The fact that the defendant served an offer to allow judgment to be entered for a specific sum, is not such a recognition of liability for costs as to compel the payment of costs under any and all circumstances. The answer to this proposition is,- that this offer was refused, and hence both parties occupy precisely the same position as they did before it was made.

hi or is it proper to consider on this appeal the question whether the plaintiff is entitled to costs by reason of an unreasonable resistance to the claim litigated. That is a matter which will more appropriately arise upon a motion for costs when both parties can be heard, and is not now before us.

I think that the special term committed no error in setting aside the whole judgment. The judgment was clearly erroneous in having costs inserted, and therefore the whole was properly vacated. The fact that it was thus erroneous in part, did not fairly entitle the plaintiff to costs of the appeal, and he probably would be entitled to interest as costs under the statute {Laws of 1869, 1870) even if he should fail in obtaining an allowance of costs on motion.

This, however, is not material to the disposition of the questions arising on this motion, if I am correct in the views I have before expressed, and should not intefere with the affirmance of the order.

I think that the order should be affirmed with costs.

Peckham and Ingalls, JJ., were in favor of affirming except as to costs, and it was accordingly—

Ordered, That judgment stand except as to costs ; and that these should be stricken out of the judgment, without prejudice to an application hereafter for costs, and that no costs be allowed to either party on this appeal. 
      
      Present, Peckham, Ingalls and Miller, JJ.
     