Hunt v. Connor

17 Abb. Pr. 466

Opinion

Clerke, J.

I think the provisions of the Revised Statutes, as to costs against executors and administrators, referred to in section.317 of the Code, apply only to the general costs of the action, and have no reference to appeal or interlocutory costs. The statute relating to costs in error or appeal is general,— that the successful party shall recover costs, without any exception in favor of executors or administrators; and, as Justice Bronson says in Judah a. Stagg (22 Wend., 641), “We are not authorized to make an exception which the Legislature has not thought proper to make.”

The respective orders of the general term, in the case before us, provide that costs should abide the event, and the amount and items adjusted appear to be correct.

The order should be affirmed, without costs, however.

Leonard and Sutherland, JJ., concurred.