Schenck v. Rickaby

Andrews, J.

The question whether costs shall be awarded against an executor or administrator, pursuant to sections 1835 and 1836 of the Code, is to be determined by the court, and there are several provisions of section 1836 which imply that evidence tending to show' whether the case is one which is covered by these sections is to be received on the trial, not to aid the jury in finding a verdict, but to enable the court to decide w'hether costs shall be awarded against the defendant. Said section declares that, where certain things appear, the court may award costs against an executor or administrator, having reference “to the facts which appeared on the trial;” and the facts which enable the court to determine whether costs shall be awarded against the defendant cannot appear “on the trial,” unless evidence is given “on the trial” which shows whether or not the case is one of those mentioned in said two sections. Moreover, said section 1836 provides that when the action is brought in the supreme court, or in a superior city court, “the facts” must be certified by the judge or referee before whom the trial took place. It is not declared in this section of the Code, or in any other one, that the judge or referee shall ascertain such facts by means of affidavits; and the clear implication from such provision is that the judge or referee is presumed to ascertain such facts from evidence given on the trial, and it is because he is presumed to have ascertained such facts in that manner that he is required to furnish the certificate. It is true that when such facts do not appear on a trial before the court, motions for costs against executors, based upon ex parte affidavits, are sometimes made and granted; but I am of the opinion that this was not the mode of procedure contemplated by the Code; and in Ely v. Taylor, 42 Hun, 205 , it was held by the general term of the fourth department that where a referee had certified that an administrator had refused to refer a claim, such certificate could not be controverted by affidavits of attorneys and interested parties. It seems to necessarily follow that if evidence can be given on the trial to prove the facts which will authorize the court to award costs against an executor or administrator, it is proper' to set forth such facts in the complaint. The motion to strike out portions of the complaint is therefore denied, with,$10 costs to the plaintiffs to abide the event of the action.