Selden v. Christophers , 1 Abb. Pr. 272 ( 1855 )

Mitchell, J.

In the first action, Vermilya, the testator, had interposed a demurrer in his life-time; he then died, and the plaintiff amended his complaint and brought in the executors and devisees of Yermilya, as defendants; and to this amended complaint they put in a demurrer similar to that interposed by the testator. The demurrer was overruled on a hearing before Judge Eoosevelt, on the 6th-of October, with costs as against the executor, out of the estate, but without costs as against the infant defendant; and by the order Christophers was to pay the costs out of the funds of the estate and have leave to answer within .twenty days, on payment of those costs. The executor and heirs then made a motion before Judge Morris, showing that the first action is on an award for a large sum of money, and the second is in the nature of a cross action to set aside the award, and that the executor can discover no present available property of the testator, from which to pay costs. Judge Morris allowed the executor and. devisees to answer without the present payment of the costs, but ordered that those costs should be paid out of the estate when sufficient assets should come into the hands of the executor.

It is no objection to the order appealed from, that it was made before another judge than the one before whom the original order was made. Both orders are properly the acts of the same court,—the special term,—and not of the judges. As a matter of courtesy, the judge who heard the last motion, would have referred it to Judge Eoosevelt, if he had been requested to do so, and the latter had had leisure to attend to it.

The last motion was not an attempt to review the first order, it was an application to extend the time of payment of costs on a new state of facts not before presented to the court. It was an exercise of power not much greater than that daily used in the extension of the time to answer, which could unquestionably have been allowed in this case, although the order as is usual, had prescribed twenty days as the time to answer. The first order saved the executor from any personal liability for the costs, and made the costs expressly payable only out of the funds of the estate, and so was based on the assumption that there were funds of the estate sufficient to pay those costs ; and on this assumption it proceeded to give the defendant leave to answer on payment of these .costs. Row it appears that that assumption was incorrect in fact, and the order appealed from merely carries out what the original order implies would have been the direction of the judge making it, if the facts now presented had been made known to him. It can hardly be doubted that on a motion to resettle his order with these facts before him, he would have corrected the order so as to conform to the last order.

Here the executor and the infants must abandon a defence to a claim for many thousand dollars, unless such relief be granted to them. Nor will" this indulgence encourage protracted litigation. If after one failure of this kind, the executor commit another, it would be evidence that his defence was not conducted in that spirit which should entitle him to such indulgence again.

The order appealed from should be affirmed without costs.