Thompson agt. Bullock.

tained. (Winne agt. Van Schaick, 9 Wend. 448; Potter agt. Etz, 5 Wend. 74; Mulheran's Ex'rs agt. Gillespie, 12 Wend. 355.)

3d. The defendants in this action are exempted from costs by statute, the plaintiff not having presented his claim, and there not having been any unreasonable delay or refusal to refer. (2 R. S. 90, § 41; 4th ed. 275, § 46; Bullock agt. Bogardus, 1 Denio, 276; Nicholson agt. Showerman, 6 Wend. 554.)

The fact that the action was originally commenced against the defendants' intestate, makes no difference. (McCann agt. Bradleys, 15 How. Pr. Rep. 79; Farren agt. Caines, 5 Ohio, 45.)

4th. Although by section 121 of the Code, an action may be continued against an administrator, and that too without presenting the claim, or asking the administrator for payment, or showing that there are any assets from which pay-. ment could be enforced, yet the administrator does not, upon such continuance, enjoy the privileges in respect to such action that the deceased did. The deceased might have put an end to the action at any moment, by paying the claim and costs to that time. Not so with the administrator; his course is marked out by statute, (2 R. S. 87, §§ 27, 28, 34, 39,) the effect of which is to prohibit, except at the administrator's own risk, any payment of the debts of the deceased, whether in suit or not, however just he may know them to be, until the expiration of the time limited in the notice for claims against the deceased to be presented; until then, he cannot know what claims there are against the deceased entitled to payment from his assets, and cannot safely pay one dollar of the deceased's debts.

The administrator not having it in his power to put an end to such an action, except by payment of the claim, the estate ought to be punished with costs for the want of that payment, which is in effect enjoined by the statute. The allowance of costs in such case would be contrary to the maxim, “that the law shall prejudice no man."

This reasoning applies more particularly to the costs after

Thompson agt. Bullock.

the continuance of the action against the administrator. But it applies to all the costs, as costs do not vest from time to time as the action proceeds.

It is only upon the recovery of judgment, that they are allowed in any case. Until then, it is not known which party will be entitled to costs, and the state of the law as to costs, at the date of the judgment controls. (15 How. Pr. R. 79.)

5th. The statute exempting executors and administrators from costs is remedial in its nature, and therefore to be liberally construed. (Sedgwick on Stat. and Con. L. 359.) While statutes giving costs are regarded as inflicting a kind of penalty, and to be construed strictly. (Cone agt. Bowles, 1 Salk. R. 205.)

The order appealed from should be affirmed.

By the court-PRATT, Judge. The order of the court below striking out the plaintiff's costs in this case, is clearly not appealable to this court.

It is claimed on part of the plaintiff, that it is a final order in a summary application after judgment, and affecting a substantial right. We think that the plaintiff's counsel is mistaken in assuming that this order comes under the provision of the Code. It has been repeatedly held by this court, that the final order referred to in that provision of the Code, is a final order in proceedings based upon the judgment, and assuming its validity-such as an application of a judgment creditor for the surplus money arising upon the sale of mortgaged premises upon foreclosure. (Sherman agt. Phelps, 2 Comst. 186; Dunlap agt. Edwards, 3 id. 341; Humphrey agt. Chamberlain, 1 Kern. 274.) The motion in this case was made in the court below upon allegations of irregularity, which went to the validity of a portion of the judgment itself. It does not appear that the supreme court has decided that the plaintiff is not entitled to costs. That court may have only decided that the proceedings of the plaintiff, in procuring the adjustment of his costs, were irregular. At all events,

French agt. The Mayor, &c., of New-York.

an order striking out of the judgment the costs, is not an order in a proceeding after judgment affirming its regularity and validity, and is therefore not appealable within the cases above cited.

Appeal dismissed.

SUPREME COURT.

PHILIP FRENCH and CHRISTOPHER HEISER agt. THE MAYOR, ALDERMEN and COMMONALTY of the City of New-York.

As between landlord and tenant, or lessor and lessee, the word "improvements,” has a more comprehensive meaning than the word "fixtures," and includes the latter.

Therefore, where the lessee covenanted in the lease of Castle Garden, N. Y., at the expiration thereof to quit and surrender to the lessors the premises, "and all the improvements that may have been placed thereon by the " lessees, "which improvements are to belong to the" lessors, &c. Held, that such covenant included “gas pipes, burners, gas ladders, gas meters, lumber in hat room, batten doors, hinges and locks, floor of stage, large glass case, benches in gallery, benches under gallery, upholstered wood work, and canvass constituting the stage, gas pendant, under gallery, picket fence on the bridge leading to the garden, sheds on the north and south sides of the building, fixtures and ticket office, board fence on the north side of the building."

General Term, July, 1858.

ON the 28th of March, 1843, defendants leased to the plaintiffs the premises known as "Castle Garden," for eleven years from May 1st, 1843.

The lease contained this clause:-" And that on the last day of the said term, or other sooner determination of the estate hereby granted-the said parties of the second part, their executors, administrators or assigns, shall and will quit and surrender unto the said parties of the first part, their successors or assigns, the premises hereby demised, and all the improvements that may have been placed thereon by the said parties of the second part, their executors, administrators or

French agt. The Mayor, &c., of New-York,

assigns, which improvements are to belong to the said parties of the first part, their successors or assigns, and all of which are to be so surrendered up in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted."

May 1st, 1854, the term of the plaintiffs under the lease aforesaid expired.

Before the expiration of their term, the plaintiffs began to remove gas pipes, burners, gas ladders, and two large and one small meters, lumber in hat room, fifteen batten doors, hinges and locks, floor of stage, large glass case, benches in gallery, benches under gallery, upholstered wood-work and canvass constituting the stage, gas pendant, under gallery, picket fence on the bridge leading to the garden, sheds on the north and south sides of the building, fixtures and ticket office, board fence on the north side of the building."

An injunction was obtained by defendants, April 15, 1854, restraining the plaintiffs from removing or displacing any of these articles. The action was subsequently discontinued, and this action was brought by the plaintiffs to recover the value of the gas pipes, burners, &c., above mentioned. The complaint alleging that the defendants had wrongfully taken and retained the said property.

The cause was tried before Judge DAVIES, at the January circuit in 1857, and a verdict was taken for the plaintiffs for $4,431.25, subject to the opinion of the court.

WM. M. EVARTS and R. H. BoWNE, for plaintiffs. RICHARD BUSTEED and A. R. LAWRENCE, JR., for defendants.

By the court-DAVIES, Justice. The question in this case is not, what are fixtures which a tenant is at liberty to remove on the expiration of his lease? but what did the lessees covenant with the lessors they would surrender and suffer to remain on the demised premises on the termination of the lease?

The covenants of the lease are, that on the last day of the

French agt. The Mayor, &c., of New-York.

term the lessees will surrender the demised premises, "and all the improvements that may have been placed thereon by the said parties of the second part" (the lessees); “and which improvements are to belong to the said parties of the first part" (the lessors), "and all of which are to be surrendered up in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted."

The terms of the lease are, therefore, very broad, and would seem to comprehend all and every erection, improvement or addition made, put or erected upon said premises during the continuance of the lease. It was manifestly in contemplation of the parties to the lease, at the time of mak ing it, that extensive improvements, changes or alterations were to be made by the lessees to adapt the demised premises to such uses and purposes as they might wish to put them to, and that these alterations and improvements were to be made at the expense of the lessees.

The lessors consented to such alterations and improvements, on condition that at the expiration of the lease they were to belong and become the property of the lessors; and the lessees, in consideration of such permission to make alterations, repairs and improvements, on the expiration of the lease, to surrender them up in as good state and condition as reasonable use and wear thereof would permit.

The covenant is to surrender all the improvements that may have been placed thereon. Improvements, clearly, in the lease here used, embrace every addition, alteration, erection or annexation made by the lessees during the demised term, to render the premises more available and profitable, or useful and convenient to them. It is a more comprehensive word than "fixtures," and necessarily includes it, and such additions as the law might not regard as fixtures. It would be difficult to select a more comprehensive word; and where the parties say that all improvements which may be placed on the premises shall belong to the lessors, it is difficult to say what, if anything, would be excluded.

Such, we think, is the view taken by the common pleas of