Pauley v. Millspaugh

95 A.D. 208, 88 N.Y.S. 565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1904
• Status: Published

Opinion

Jenks, J.:

The defendants appeal from an order made at Trial Term charging costs, disbursements and an allowance against the property of their testator. The motion was made after the trial of the issues, and the record contains affidavits of the respective attorneys which were read on the motion. The learned justice who presided at the trial and who granted the motion certifies that the payment of the claim in suit was unreasonably resisted and neglected, and that the defendants did not file the consent provided for by section 1822 of the Code of Civil Procedure. There is no pretense that the defendants ever filed the consent provided for in the said section,- but the learned counsel for the appellants contends that the allowance could not have been justified under section 1836 of the Code of Civil Procedure upon the ground of such omission, for the reason that the plaintiff’s claim, which was rejected on January 27, 1903, was put in suit in May of that year, and, consequently, before the expiry of five months and twenty days from January 27, 1903. I think that this court is committed to this view by its judgment in Ballantyne v. Steenwerth (79 App. Div. 632), which followed Hart v. Hart (45 id. 280). But in Ballantyne’s Case (supra) we also necessarily decided that the provisions of section 1836 of the Code of Civil Procedure are alternative, i. <?., that the award of costs could be based upon (1) unreasonable resistance or neglect, or (2) the failure to file the consent provided for in section 1822. 'And in Benjamin v. Ver Nooy (168 N. Y. 578, 582) the court say : “Upon the recovery of judgment for a sum of money only against an executor, as such, costs cannot be awarded against him unless the demand of the plaintiff was properly presented and payment thereof was unreasonably resisted or neglected, or unless the executor did not consent to refer according to law. (§§ 1822, 1835, 1836 and 3246.

*) The general rule exempts an executor from the payment of costs, but when a case falls under either of the two exceptions, the court may award costs against him.”

The proceedings at the trial are not detailed in the record, but it. appears therein that the complaint was upon a promissory note,, made by Samuel W. Millspaugh and indorsed before delivery to plaintiff by the decedent, which was duly presented for payment to Samuel W. Millspaugh, but was not paid, and that- the decedent thereafter formally waived protest and agreed to pay the note. The defendants admit their capacity, but otherwise make 'general denial. The record shows that only the plaintiff and Samuel W. Millspaugh testified for the plaintiff, and that the defendants offered no evidence. The affidavit of the plaintiff’s attorney shows that, the sole question litigated was whether or riot the defendants’’ testator had waived protest, and that this fact and,' consequently, plaintiff’s cause of action was established by Samuel W. Millspaugh (a. son of the decedent, John H. Millspaugh, and also the father of the executor and the brother of the executrix), whose testimony was not disputed, and whose whereabouts, were at all times known to the defendants. I think that we should not disturb the determination of the learned trial justice that the payment was unreasonably resisted arid neglected..

There is no force in ■ the criticism- that the certificate of the justice reads “ the payment thereof Was unreasonably resisted and neglected; and that the defendants did not file the consent.” Section 1836 of the Code of Civil Procedure is alternative, and the conjunctive form of the certificate is but the natural method of statement of two alleged separate derelictions of the defendants. If the learned court had used “ or ” instead of “ and ” there would thereupon arise a doubt as to which dereliction he intended to certify, and there would not be certainty as to either’ one. of them.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Code Civ. Proc.— [Rep.