Dean v. Roseboom , 44 N.Y. Sup. Ct. 310 ( 1885 )

Haedin, P. J.:

Section 1814 cannot be applied in tbis action, as it was passed after tbis action was commenced and relates to actions commenced after tbe passage. Tbis action was commenced April 16,1879, and tbe section was not passed until May 6, 1880.

“When tbe action was brought the plaintiff was tbe sole executor who bad qualified to act as such. If tbe action had continued on that state of facts it might have been maintained. But, instead thereof, defendant, on tbe 1st of May, 1879, qualified and set up that fact as a defense, and by means of it obtained a holding at circuit and at General Term that an action at law could not be maintained by one executor against a co-executor.

It was tbe act of tbe defendant subsequent to tbe commencement of tbe action which prevented a recovery at law by tbe plaintiff. (See opinion of Smith, J., Smith v. Lawrence, 11 Paige, 206; McGregor v. McGregor, 35 N. Y., 221; Sanford v. Sanford, 45 N. Y., 723; Hunter v. Hunter, 19 Barb., 632; Whitney v. Coapman, 39 Barb., 482.)

We cannot say that tbe plaintiff was guilty of mismanagement or bad faith in bringing tbe action. It was tbe subsequent act of tbe defendant which ousted tbe court of its jurisdiction in the premises.

In Olcott v. Maclean (11 Hun, 395) a complaint was dismissed, without costs, where an act of congress bad deprived tbe State court of jurisdiction after action brought. (See S. C., 10 Hun, 277; Code Civ. Pro., §§ 3246, 1836.)

Tbe facts which appeared at tbe trial as to whether tbe action was brought, and as to tbe plaintiff’s right then to maintain it, and tbe subsequent act of defendant in qualifying as an executor were proper to be taken into consideration in determining whether the costs should be paid by plaintiff, “ either out of bis individual property or out of tbe property of the decedent.” (Sec. 1836.) Prom the form of tbe judgment it is reasonable to infer that tbe court did consider these facts and award a judgment against tbe estate only. There is no direction in tbe judgment given by tbe trial court that they be paid “by tbe party personally.” (Sec. 3246.) It was said in Tolman v. S. B. and N. Y. Railroad Company (92 N. Y., 327), that section 3246 refers to costs in a final judgment rendered in an action. Tbis action was upon notes payable to the testatrix, or her order, and had not been indorsed, and they were assets belonging to the estate, and an action in the name of the sole representative of the estate was proper, instead of in the individual name of such representative. This appeal is from an order made upon a motion, made some four years after the entry of judgment.

We are of the opinion that the Special Term was right in denying the motion, and the order should be affirmed, with ten dollars costs and disbursements.

Eollett and YaNN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.