Clarkson v. Root , 18 Abb. N. Cas. 462 ( 1887 )

Pattersoh, J.

This motion must be denied. It was held in Horton v. Brown (29 Hun, 654) that costs cannot be allowed in an action Against an executor who lias published the statutory notice requiring all creditors to present claims unless the claim upon which the action was brought was presented within the statutory limitations and the executor unreasonably resisted or neglected to pay. In other words, two things must concur—first, the presentation within the time limited, and the unreasonable resistance or delay.

In this case Judge Beaoii certifies that in his opinion the claim was unreasonably resisted ; but it is quite evident it ivas not presented within the statutory limitation. Field v. Field (77 N. Y. 294, 296) seems by the head-note to decide differently; but Judge Pratt has clearly pointed out in Horton v. Brown, that from “ a careful reading of that case no such decision was intended,” and such is my belief after reading the opinion of Church, Ch. J.

The motion is denied, without costs.^*

* The order entered, simply denied the motion, the court refusing to sign an order presented, which, in addition provided: “Nothing herein contained to prejudice the plaintiffs’ right to tax and recover their disbursements herein.” See Code Civ. Pro. § 3256.