#### Reuben Brinker, Resp’t, *v.*Henry B. Loomis, as Ex’r, etc., Appl’t.

*Supreme Court, General Term, Fifth Department,*

*Filed January,*1887.)

Costs — Executobs and administbatobs — When entitled to against— Code Civ. Peo., § 1835, 1836.

Where a claim duly verified was presented to the executor and was rejected, accompanied with a refusal to refer, the executor never having advertised for the presentation of claims against the estate of the testator. *Held,*that the plaintiff having recovered a verdict in the action was entitled to costs under Code Civ. Pro., §§ 1835, 1336.

As appeal from an order of the Chautauqua county special term allowing costs to be taxed in the plaintiff’s favor against the defendant as executor of the last will and testament of Lester Crane, deceased.

*Sessions*Palmer, for the appl’t; *Bootey, Fowler Weeks,*for the resp’t.

Barker, J.

The executor advertised for the presentation of claims against the estate of the testator. The plaintiff did present his claim, duly verified, to the executor, in April, 1884, who rejected the same and refused to refer as provided by statute-*440Thereafter this action was commenced and the plaintiff recovered a verdict for $232.55, and upon these facts the special term awarded costs against the defendant as executor. The application for costs was resisted upon the sole ground that a case was not made for their allowance within the provision of sections 1835 and 1836, of the Code.

As the claim was not presented “ within the time limited by a notice published as prescribed by law, requiring creditors to present their claims,” as provided by those sections, the case of *Field*v. Field, 77 N. Y., 294, is in point and sustains the ruling of the special term, allowing costs to the plaintiff. In that case, as in this, the claim was presented to the executor for allowance before the publication of any notice, and the same was rejected, accompanied with a refusal to refer. After such dis-allowance the executor did publish a notice and the claim was not represented by the claimant within the time limited by a notice published as then prescribed by law. The last circumstance does not exist in the case now here. It was held in that case, that the plaintiff having recovered a verdict on his claim was entitled to costs; that a claim may be presented to the executor at any time after he has duly qualified, and that there is nothing in the statute requiring that such presentation shall be made and followed by a refusal to refer, during the publication of the notice to creditors, to entitle the plaintiff to costs in case he succeeds in an action based thereon. The notice is for the protection of the executors, and the estates which they represent, and there is no absolute obligation to give it at all. In that case, the question arose and was decided before the Code went into effect. But we think the sections of the Code contain nothing new on the subject, and that the provisions of the Revised Statutes were simply brought forward and re-enacted, and that sections 1835 and 1836, should receive the same construction as was given to the former statute, in *Field*v. Field, *supra.*In 2 R. S., § 41, 3rd ed., p. 153, there is a negative provision that no costs shall be recovered in any suit against an executor or administrator, unless it appear that the demand on which the suit was founded was presented within the time fixed by a notice published as prescribed by law. In sections 1835 and 1836, is found a like negative proviso that costs shall not be awarded against an executor except when it appears that the plaintiff’s demand was presented within a time fixed by a notice as prescribed by law. The language of the old and the new statute is essentially the same, and relates to the same subject-matter.

The claim having been duly presented and the executor refusing to refer, the plaintiff was entitled to costs as a matter of .course. *Snyder*v. Snyder, 26 Hun, 324.

Order affirmed with $10 costs and disbursements.

All concur.