a. Where a motion has been granted or denied, and nothing is said about costs in the order deciding it, the clerk can make no allowance for costs of such motion in the final costs of the action (Morrison v. Ide, 3 Code Rep. 27; 4 How. 305; Van Wyck v. Alliger, 4 How. 164; Mitchell v. Westervelt, 6 ib. 265-311; Nellis v. De Forest, ib. 413); but where, on a motion, the order was made "with costs," not specifying the amount,-held the costs meant were full costs of a motion, $10 (Pennell v. Wilson, 5 Rob. 676).

b. An appeal from an order at chambers is a motion; and where no costs are awarded on the decision of such an appeal, none can be allowed (Savage v. Darrow, 4 How. 74).

c Costs on a motion and interlocutory costs, how collected. The provisions of law for collecting interlocutory costs are not repealed by the code (Lucas v. Johnson, 6 How. 121; Poillon v. Houghton, 2 Code Rep. 14). And these provisions are (Laws of 1840, p. 333, § 15): "All orders awarding costs upon granting or denying special motions, shall specify the amount of such costs; and where the order for the payment of such costs, or any sum of money, upon a special motion, is not conditional, a precept to enforce payment of such costs or sum of money may be issued without any demand or application to the court."

d. Laws of 1847, p. 491, § 2: "No person shall be imprisoned for the nonpayment of interlocutory costs, or for contempt of court for not paying costs, except attorneys, solicitors, and counsellors, and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on an attachment for nonattendance (§ 3). Process in the nature of a fieri facias against personal property may be issued for the collection of such costs, founded on such order of court.

e. If costs on a motion are not paid within twenty days, no previous demand is necessary prior to issuing an execution in the nature of a fi. fa. for their collection (Mitchell v. Westervelt, 6 How. 265; Wetzell v. Schultz, 3 Abb. 468; 13 How. 191).

f. The act of 1847 "does not apply to those cases of contempt where a party may be fined for any misconduct productive of an actual loss or injury to the other party" (Livingston v. Fitzgerald, 2 Barb. 396).

g. Process in the nature of a fieri facias cannot be issued to collect costs allowed by an order made in supplementary proceedings, because such an order is not an order of the court, but only of the judge or officer before whom the proceeding is pending (Hulsaver v. Wiles, 11 How. 446).

h. The costs of an application for judgment, when made upon the whole of the pleadings, relating to all or only one of the alleged causes of action, are to be collected as part of the judgment (Wesley v. Bennett, 6 Abb. 12).

¿. What are interlocutory costs.-Where one of several defenses is demurred to and the demurrer is sustained with liberty to the defendant to amend on payment of costs, if the defendant does not amend, the costs of the demurrer are not interlocutory, and are not collectable by precept (Moza or Mora v. Sun Mut. Ins. Co. 22 How. 60; 13 Abb. 304; Palmer v. Smedley, 13 Abb. 185). Interlocutory costs are those of some proceeding intermediate the commencement of the action and its final decision (Purchase v. Bellows, 16 Abb. 108).

§ 316. Costs against infant plaintiff.

When costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and payment thereof may be enforced by attachment.

j. The word may in this section is to be read must or shall, and if the action by the guardian fails, he is liable to be attached for the nonpayment of the costs. His poverty is no excuse (Grantman v. Thrall, 31 How. 464).

§ 317. (Am'd 1851, 1852.) Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. Reference of claim against a deceased person. Security for costs.

(1.) In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom by section forty-one, of title three, chapter six, of the second part of the revised statutes. (2.) And whenever any claim against a deceased person shall be referred, pursuant to the provisions of the revised statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. (3.) And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs.

a. Sureties and trustees.-Any indorser or other surety, and any assignee, executor, administrator or other trustee, shall be entitled to and allowed to recover from his principal or cestui que trust, all necessary and reasonable costs and expenses paid or incurred by him in good faith, as surety or trustee in the prosecution or defense in good faith of any action by or against any assignee, executor, administrator, or other trustee as such (Laws 1858, ch. 314, § 3).

b. Trustees of an express trust.-A general assignee for the benefit of creditors is a trustee of an express trust within this section (Cunningham v. McGregor, 12 How. 805; 5 Duer, 648); so is a person who, pending the action, became assignee of one of the plaintiffs, by an assignment, the object of which was to indemnify him, the assignee, from all loss by reason of having indorsed and guaranteed the notes of such plaintiff (Conger v. Hudson R. R. R. Co. 7 Abb. 255). An action brought on behalf of a bank, in the name of its president, is not an action prosecuted in another's right so as to excuse the plaintiff, failing in the action, from paying costs (Lowerre v. Vail, 5 Abb. 229). When the receiver of an insurance company prosecutes an action begun by the company before his appointment, and the action does not succeed, he is chargeable with the costs in like manner as if he had been made a party plaintiff (Colum. Ins. Co. v. Stevens, 37 N. Y. 536); and see post, p. 513 ƒ. Executors, &c., personally liable for costs; and see in note to § 321, post.

c. Executor plaintiff—costs against.—A plaintiff who sues as executor, on judgment being render ed against him, is liable for costs, either personally or to be paid by the estate, in all cases where one suing in his own right would pay costs (Curtis v. Dutton, 4 Sand. 719; Woodruff v. Cook, 14 How. 481; Goodrich v. Pendleton, 3 Johns. Ch. 520). It is only in actions against executors

or administrators, not in actions by them, that any exemption from costs is provided for (Fox v. Fox, 22 How. 453); but the defendant cannot enter judgment for costs against the plaintiff personally unless the court so directs (Woodruff v. Cook, 14 How. 481; see ante, p. 428 h. and infra in this note). One who as administrator commences an action for the benefit of the estate, does not become personally liable for the costs, by the fact of his ceasing, pending the action, to be administrator (Baxter v. Davis, 3 Abb. N. S. 249).

a. There is no authority in the courts of this State for allowing what are termed "trustee costs" (Rose v. Rose Benev. Soc. 28 N. Y. 184).

b. The provisions of the revised statutes forbidding the recovery of costs against executors or administrators except in certain cases, and referred to in section 317 of the code, apply only to the general costs in the action, and have no reference to interlocutory costs or the costs of an appeal (Hunt v. Connor, 17 Abb. 466).

c. Costs against the estate will be allowed to a creditor who succeeds in an action against an executor or administrator on a claim the payment of which was unreasonably resisted (Boyd v. Wilkin, 23 How. 137).

d. Where, on a motion for costs against executors for refusing to refer, it is found as a question of fact that they did so refuse, the general term will not review that finding. An extra allowance to executors is governed by the same rules as the allowance of costs to them (Niblo v. Binsse, 31 How. 476). Where an order for costs and allowance to executors is made after judgment, the order should be entered as of the day of entering the judgment (id.)

e. Executor, &c., defendant.—Costs against.-To entitle a plaintiff to charge an executor defendant with the costs of the action, he must establish, to the satisfaction of the court, that the demand being duly presented, payment of it was, (1) unreasonably neglected, or (2) unreasonably resisted, or (3) that the executor refused to refer, as provided by the statute [2 R. S. 90, § 41] (Buckhout v. Hunt, 16 How. 407; Snyder v. Young, 4 How. 217; Van Vleck v. Burroughs, 6 Barb. 341; Fort v. Gooding, 9 id. 388; Russell v. Lane, 1 Barb. 519; Bullock v. Bogardus, 1 Denio, 276). An executor defendant is not liable for costs for omitting to advertise for the presentment of claims (Snyder v. Young, 4 How. 217; Van Vleck v. Burroughs, 6 Barb. 341; 22 Wend. 571; 6 Hill, 386).

f. Where an action is commenced against an intestate in his lifetime, and after his death is by order continued against his administrators pursuant to section 121, if the plaintiff succeed, he is entitled to costs against the estate (Lemen v. Wood, 16 How. 285; Benedict v. Caffe, 3 Duer, 669; Mitchell v. Mount, 17 Abb. 213; Merritt v. Thompson, 27 Ñ. Y. 225; Murray v. Smith, 9 Bosw. 689), if the verdict be one which would have entitled the plaintiff to recover costs of the original defendant if living (id.) The exception in this section (317) refers only to actions commenced against executors, &c., not to an action commenced against a testator and continued against his executor (id.; Tindall v. Jones, 11 Abb. 258; 19 How. 469; see, however, McCann v. Bradley, 15 How. 79).

g. When in an action upon a promissory note brought against the representatives of a deceased joint debtor upon the insolvency of the survivor, in which the surviving joint debtor was made a codefendant, and a recovery had in favor of the plaintiff,-held that the plaintiff was entitled to recover his costs (Yorks v. Peck, 9 How. 201).

h. Offer to refer.-The offer to refer may be by parol (Lanning v. Swarts, 9 How. 434; and see 1 Barb. 519).

¿. What may be referred.-Both legal and equitable claims against the estate of a deceased person may be referred under the statute (White v. Story, 28 How. 173); but only those claims are referable which accrued against the testator during his life, or which would have accrued against him if he had continued in life (Godding v. Porter, 17 Abb. 374). A claim against a decedent's estate for a tort of the decedent, the conversion of personal property, is referable under the statute (Brocket v. Bush, 18 Abb. 337; see Sands v. Craft, 18 How. 438; 10 Abb. 246; Francisco v. Fitch, 25 Barb.

130). A consent to refer "claims" against a decedent's estate gives jurisdiction to decree payment of costs, even though the claim be not properly referable under the statute (id.)

a. Disputed claim.-A disputed claim cannot be tried by the surrogate (Andrews v. Wallige, 17 How. 262; Dissosway v. B'k of Washington, 24 Barb. 60).

b. Unreasonable resistance.-A claim cannot be said to be unreasonably resisted where on the trial it has been materially reduced (Cruikshank v. Cruikshank, 9 How. 350; Comstock v. Olmstead, 6 id. 77; Buckhout v. Hunt, 16 id. 407). A reduction from $1,000 to $350, or from $5,000 to $3,000, is a material reduction (id.)

c. A claim against an estate cannot be said to be unreasonably resisted where the credit was originally given and the amount charged to a third person, but on the hearing proved to be for the benefit of the deceased (Comstock v. Olmstead, 6 How. 77); nor where the administratrix had good reason to suppose there was a valid defense to the claim in whole or a material part of it, and that probably the defense interposed would have been successful if, at the trial, she could have procured her witness (Stephenson v. Clark, 12 How. 282).

d. Unreasonable neglect.—Where a claim was presented thirty-four days after the issuing of letters testamentary, and was put in suit fifteen days after its presentment,-held that it had not been unreasonably neglected (Buckhout v. Hunt, 16 How. 407; and see Stephenson v. Clark, 12 id. 282; Russel v. Lane, 1 Barb. 519; Fort v. Gooding, 9 Barb. 388; Knapp v. Curtis, 6 Hill, 386).

e. Refusal to refer.-In order to charge an estate with costs, on the ground of a refusal to refer a claim, it must appear affirmatively that there was a refusal by the legal representative to refer. Where the claimant said to the administratrix, on presenting his account, "I don't want any trouble about it, as we have always been good friends, and I am willing to have the account referred to some disinterested persons," and she replied, "I hope there will be no trouble about it; and I will see George [her son] about it;" and on the same day a summons on the claim was put into the sheriff's hands, but not served until some fourteen days afterward,-held that it was natural that the administratrix should understand that a general leaving out of the matter in the nature of an arbritration was intended, instead of a strict legal reference under the statute; besides, there was, in fact, no refusal to refer (Stephenson v. Clark, 12 How. 282). The refusal, by executors, to refer a claim against the estate, may be either by the rejection of an offer to refer, made by the creditor, or by some equivalent act on their part. An unqualified rejection of the claim, unaccompanied with an offer to refer, is equivalent to a refusal to refer (Fort v Gooding, 9 Barb. 388); see, however, what is said as to that case (Buckhout v. Hunt, 16 How. 412). It is not enough to show that the administrator refused to arbitrate (Swift v. Blair, 12 Wend. 278). Nor, where a claim was presented to one of several executors, which he disputed, but declined to refer, saying he wished to consult his co-executors before doing so, and the creditor, without waiting a reasonable time for that purpose, commenced a suit (Knapp v. Curtis, 6 Hill, 386). An unqualified rejection of the claim, unaccompanied with an offer to refer, is not equivalent to a refusal to refer (Proude v Whiton, 15 How. 304; contra, Fort v. Gooding, 9 Barb. 394; but see 16 How. 412). A creditor having a claim against executors, &c., who desires a reference, must move first; he must offer to refer, and until he does, the executors, &c., cannot be said to refuse to refer (Proude v. Whiton, 15 How. 304). It is not sufficient for the executors, &c., to offer to refer the claim to three referees named by themselves. If such an offer is rejected, and the claimant proposes that the parties shall appear before the surrogate, to have referees selected, the executors must accept such offer to save the liability for costs (Gorham v. Ripley, 16 How. 313).

f. Action on disputed claims.-Actions on disputed claim need not be within six months (Dolbeer v. Cosey, 19 Barb. 149).

a. Order for costs against executors, &c.-In suits against executors, or administrators, trustees of express trusts, &c., the plaintiff cannot include costs in his judgment without obtaining leave of the court (Mersereau v. Ryerss, 12 How. 301; Woodruff v. Cook, 14 How. 481; Marsh v. Hussey, 4 Bosw. 614). If costs are included without leave of the court, they will, on the defendant's motion, be stricken out (Snyder v. Young, 4 How. 217). Such leave may be given at the trial, or upon a motion subsequently made for the purpose (Lansing v. Cole, 3 Code R. 246). Where a motion for costs against executors or admininistrators is made, at a term of the court not held by the same judge before whom the trial was had, the certificate of the judge before whom the trial was had must be presented, showing what facts bearing on the question of costs appeared on the trial. Whether, where the motion for costs is made at a term held by the same judge who presided on the trial, any certificate is necessary, query? (Parkhill v. Hillman, 12 How. 353). A certificate of the referee's that the claim was "unreasonably resisted," is no evidence (ib.) But the better course, it is said, is to present a certificate of the referee, of what took place on the trial (Mersereau v. Ryeres, 12 How. 303). b. Reference of à claim against executors, &c., without action.—On a reference, without action of a claim against an executor or administrator, after the referees have made their report, judgment cannot be entered thereon without an application to the court at special term (Boyd v. Bigelow, 14 How. 512; Rudley v. Fisher, 24 How. 404). Then either party' dissatisfied may oppose the confirmation of the report, or move to set it aside. If the report is confirmed, judgment is entered thereon, and then appeal may be brought from the judgment to the general term. Such an appeal is within the "act in relation to special proceedings," and no security need be given by the appellant in the first instance; but if he desire to stay proceedings pending the appeal, he must apply to the court or a judge for an order for that purpose. An appeal can be brought only in the case of a judgment entered by order of the court, and not from a judgment entered on a stipulation (Boyd v. Bigelow, 14 How. 511). On a motion to confirm the report, the court must either confirm the report or set it aside, it cannot order a judgment contrary to the report (Coe v. Coe, 14 Abb. 86). On a motion to confirm, the executor may insist that the case is not a referable one, and if that is made to appear, the court will not confirm the report (Godding v. Porter, 17 Abb. 374). The provision in § 273, requiring referees to report within sixty days, does not apply to references of claims against executors (id.)

c. The agreement to refer must be filed, and an order entered to give the court jurisdiction (Comstock v. Olmstead, 6 How. 77).

d. Where it is agreed to refer a claim, the agreement to refer need not notice matters of defense. On the approval by the surrogate of the agreement to refer, and on filing the same in the office of a clerk of the supreme court, the agreement became operative as a voluntary submission by the parties to the jurisdiction of the court. No pleadings are necessary. On the trial the plaintiff must prove his claim as on a trial, and the executors may insist upon any defense they think proper (Tracy v. Suydam, 30 Barb. 110; Munson v. Howell, 12 Abb. 77; 20 How. 59).

e. Costs on a reference of a claim.-A claimant who succeeds on a reference of a disputed claim, is entitled to costs and disbursements as in an action (Linn v. Clow, 14 How. 508; and see Boyd v. Bigelow, id. 511; Munson v. Howell, 20 id. 59; 12 Abb. 77; Radley v. Fisher, 24 How. 404). If the claimant fails, the executors or administrators are entitled to costs against him as in an action (id.)

f. Executor, &c. When personally liable for costs.-Costs are not allowed against executors or administrators personally, except for wantonly bringing a suit (Theriot v. Prince, 12 How. 451), or for liability arising by their own act (Ackerman v. Smith, 3 Barb. 626). Where two persons sue as executors and fail in the action, one of them cannot be charged with costs on the ground that he was beneficially interested in the recovery, in right of