
    Executors of Mahany against Fuller.
    Where executors sued in this court, and recovered less than fifty dollars, it was held, that they were not entitled to recover costs, nor liable to pay Costs to the defendant.
    This was an action of assumpsit. The defendant pleaded non assumpsit, and payment, with a notice of set-off. The cause was referred, by consent, and the referees reported a balance in favor of the plaintiffs, for eight dollars and forty cents.
    
      Van Vechten, for the plaintiffs, now moved for full costs.
    
      Graham, contra.
   *Lansing, Ch. J.

delivered the opinion of the court. The statute, (10 sess. c. 72,) which was expressly enacted to restrain parties from bringing suits in this court, for the recovery of less than the sum of two hundred and fifty dollars, limits the plaintiff’s right to costs to the recovery of fifty dollars. In case he recovers more than fifty dollars, but less than two hundred and. fifty dollars, he is then entitled to such costs only as are taxed in the courts of common pleas ; and if less than fifty dollars is recovered, the defendant becomes entitled to costs against the plaintiff, as in the case of a verdict in his favor.

The plaintiffs in the present case prosecute as executors, and cannot be affected by the provision of the act which subjects plaintiffs, who recover less than fifty dollars to the payment of costs; for if such were to be the construction of the act, it would involve the inconsistency of subjecting executors, who were plaintiffs, to the payment of costs, if they sustained their suit, and recovered less than fifty dollars, and wholly exempting them from costs, in case of a total failure in their suit.

The preamble to the statute shows the intent of the legislature. It recites, that there are courts of record in the several counties, in which suitors may obtain justice, at a less expense, than in this court, and for that reason, imposes the restraints on suits, for small sums, in the supreme court.

This court has decided that executors, plaintiffs, who recover less than twenty-five dollars, in the courts of common pleas, are, nevertheless, entitled to costs. That decision was founded on the consideration, that the ten found act did not extend to cases of executors, and that consequently, the statutes, relative to costs, which gave costs to plaintiffs who recovered damages, applied.

The plea of set-off does not vary the case, for the statute puts it expressly on the recovery. As the plaintiffs would not have been liable to pay costs, in case a verdict had been found for the defendant, neither ought *they to recover costs. The act ought not to be construed so as to deprive executors of the benefit of their general exemption from costs. The motion must be denied.

Motion denied.() 
      
      
        (a) As to costs against executors and administrators in suits brought by them, see Grah. Prac, 2d ed. 737, and references.
     