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 (Cruik shank 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 (b.) 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 a 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; Radley 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

his wife (Finley v. Jones, 6 Barb. 229). A trustee, &c., must sue as such in order to avoid personal liability for costs; for, if he sues in his own right and is defeated, he must pay costs, and no order is necessary to charge him personally (Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635; Carnahan v. Pond, 15 Abb. 194). And a receiver who sues without leave of the court and is defeated, will, as a general rule, be held personally liable for the costs (Smith v. Woodruff, 6 Abb. 65; Phelps v. Cole, 3 Code Rep. 157; Cumming v. Egerton, 9 Bosw. 684).

a. Where the complaint alleges a contract made with the plaintiffs, as trustees, for the benefit of the trust, the designation of the plaintiffs is not to be regarded as mere matter of description, but as showing that they sue in their representative capacity (id.) Where the plaintiff, a trustee for the benefit of creditors, sued on a note for the benefit of the estate, but withont alluding in the complaint to his representative character, he having failed in the action, was held to be personally liable for the costs (Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635).

b. No judgment for costs against an executor, &c., or trustee of express trust personally, can in any case be entered, unless, nor until the court so order. Such order is to be obtained by motion on notice (Slocum v. Barry, 38 N. Y. 46; 4 Abb. N. S. 399; Woodruff v. Cook, 14 How. 481; Devendorf v. Dickenson, 21 How. 275; Marsh v. Hussey, 4 Bosw. 614; Olmstead v. Vredenburgh, 10 How. ante, p. 215; 428, h). Trustees of school districts, defending in good faith acts done in virtue or under color of their office, are entitled to a certificate of having acted in good faith (Clarke v. Tunnicliffe, 5 Trans. App. 268), and on receiving such certificate are not liable for costs (id.)

. c. An executor or administrator suing as such, is personally liable for costs in any action not necessarily prosecuted in his representative character. And those actions only are necessarily prosecuted in his representative character, where his testator or intestate had a complete cause of action in his lifetime (Woodruff v. Cook, 14 How. 481).

d. Where a plaintiff sues as assignee, or trustee of an express trust, and the court holds the instrument under which he claims void, and that he is not in fact assignee or trustee, he cannot claim any exemption from costs under this section (Sibell v. Remsen, 30 Barb. 441).

e. The provision as to mismanagement and bad faith should be confined to cases of mismanagement or bad faith on the part of the plaintiff in commencing the action, and not extended to his conduct in the management of his trust (Kimberly, Rec'r, &c. v. Stewart, 22 How. 281; Kimberly v. Blackford, 22 How. 443).

f. A receiver having appealed from the decision at special term, and failed, is no evidence of mismanagement or bad faith, nor is the fact of his having paid a subsequent judgment any such evidence (Devendorf v. Dickinson, 21 How. 275).

g. Facts other than those appearing on the trial are proper to be considered in determining whether costs shall be recovered against executors or administrators (Mercereau v. Ryerss, 12 How. 301).

h. A motion to compel a receiver to pay a judgment for costs recovered against him, should not be made until after an order that he pay such costs personally (Devendorf v. Dickinson, 21 How. 275).

i. An order denying a motion to set aside an execution for costs against plaintiffs personally, where such plaintiffs claim to act as trustees, is appealable (Slocum v. Barry, 34 How 320).

j. An order denying a motion that a receiver plaintiff pay costs, is appealable to the general term (Columbia Ins. Co. v. Stevens, 4 Abb. N. S. 122 ; 35 How. 101).

k. Where a receiver in supplementary proceedings, by direction or leave of the court, brings a suit to set aside conveyances made by the judgment debtor, and fails, the judgment creditor, on whose application the receiver was ap

pointed, is not liable for the costs (Cutter v. Reilly, 31 How. 472; 5 Rob. 637; Wheeler v. Wright, 14 Abb. 353).

See ante p. 510 b. and see § 321.

a. Real estate-costs against executors.-Costs awarded against executors can in no event be a charge on real estate in the hands of an heir (Sanford v. Granger, 12 Barb. 392).

b. Security for costs, when not required.—Security will not be required of an assignee who brings an action to recover possession of property, which has been seized on an attachment at the suit of the creditor of the assignor, on an allegation that the assignment is a fraud upon creditors, and the assignee is a party to the fraud, unless there be such evidence of the truth of the allegation as renders it highly probable that the allegation is in accordance with the facts of the case (Shepherd v. Burt, 3 Duer, 645). Nor of an executor, administrator, or trustee, merely upon the ground that the estate which he represents is insolvent (Darby v. Condit, 1 Duer, 599). Unless it also appears that the plaintiff is himself insolvent (id.) Where bad faith in a receiver in commencing the action is shown, he will be required to give security for costs. Security ordered (Kimberly v. Goodrich, 22 How. 424). An ex parte order giving a receiver leave to sue, is not a bar to a motion requiring the receiver to give security for costs (Bolles v. Duff, 17 Abb. 448). An order requiring a receiver to give security for costs is not appealable (id.) See in note to § 303, Security for costs, ante, p. 483 d.

318. (Am'd 1862.) Costs on review of a decision of an inferior court in a special proceeding.

When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogates' courts, shall be brought before the supreme court for review, such proceedings shall, for all purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

e. A summary proceeding to compel a party to support a relative, brought by certiorari from the court of sessions to the supreme court for review, is within this section (Haviland v. White, 7 How. 154).

d. No costs can be allowed on a common law certiorari (The People v. B'd of Police, 39 N. Y. 506); but an appeal from a decision on such a certiorari being a special proceeding, costs are allowable on such appeal (The People v. Van Alstyne, 3 Keyes, 35). Where the general term, on a common law certiorari, reversed a decision of a county judge and referees upon the question of laying out a private road, without any direction as to costs,-held that a judgment for costs entered without order was irregular (The People v. Robinson, 25 How. 345).

See Laws 1854, p. 593, § 3, as to costs on appeal in special proceedings, in note to § 349, post.

§ 319. Costs in actions by the people.

In all civil actions prosecuted in the name of the people of this State, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases and to the same extent as private parties. If a private person be joined with the

people as plaintiff, he shall be liable in the first instance for the defendant's costs; which shall not be recovered of the people, till after execution issued therefor against such private party and returned unsatisfied.

§ 320. Costs in actions by the people.

In an action, prosecuted in the name of the people of this State, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation, or person, costs awarded against the plaintiff shall be charge against the party for whose benefit the action was prosecuted, and not against the people.

a. In suits instituted by the district attorney of a county, in the name of the people, under the Metropolitan Police Act, for selling intoxicating liquors on Sunday, if the defendants succeed, the people are liable for costs (The People v. Stauts, 17 How. 10).

§ 321. Costs against assignee of cause of action, after action brought.

In actions in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attach

ment.

b. If an action be brought in the name of another, by an assignee of any right of action, or by any person beneficially interested in the recovery in such action, such assignee or person will be liable for costs in the same cases, and to the same extent in which the plaintiff would be liable (2 R. S. 619, § 44), [and the payment of such costs may be enforced by attachment (id.); and this power of the court is not taken away by laws of 1847, ch. 290, § 2 (Giles v. Halbert, 12 N. Y. 32]; (1 Hill, 629; 18 Wend. 672; 10 id. 622; see Evans v. Rees, 1 Dowl. N. S. 338; 1 Gale and D. 579; 1 Ad. and Ell. N. S. 579). Such assignee or person, also, is bound to indemnify the plaintiff on record, and will be directed to pay the costs, on his application (20 Wend. 630; 7 ib. 497). If the party in interest, however, succeed in the action, and the defendant sues out a writ of error, and the judgment is reversed, the former is not liable for the costs of the reversal (19 ib. 151; and see 11 Abb. 259).

c. An assignee is liable to the defendant for costs, although the assignment is made pending the suit, if he afterwards proceed in the action (5 Cow. 17; Carnahan v. Pond, 15 Abb. 194; Columbia Ins. Co. v. Stevens, 37 N. Y. 536). and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before as well as those which may arise after the assignment (10 Wend. 622; 20 id. 630; Creighton v. Ingersoll, 20 Barb. 541). Where the plaintiff, pending the action, made a general assignment to trustees for the benefit of creditors, and the cause was afterwards tried and the defendant had judgment, the assignee not having intermeddled with the prosecution,-held