#### HARRISON S. DEAN, as Executor, etc., of SUSAN ROSEBOOM, Deceased, Respondent, *v.*JEROME B. ROSEBOOM, Appellant.

*Action by an executor*— *when lie will not be charged personally with the costs of cm unsuccessful action.*

The plaintiff, while the sole acting executrix of one Roseboom, brought this action upon a promissory note made by the defendant to the order of the . deceased. After the commencement of the action the defendant, who was also appointed an executor in the will, qualified and set up that fact as a defense-thereby procuring a dismissal of the complaint. A judgment dismissing the complaint and for costs was entered in the defendant’s favor, and thereafter he moved to have the plaintiff charged personally with the payment of the-costs.

*Held,*that the motion was properly denied.

Appeal from an order of tbe Jefferson county Special Term denying a motion to charge tbe plaintiff personally with tbe costs of this action.

The plaintiff and the defendant were named as executors in th& last will of Susan Roseboom, deceased, and both appeared at the probate thereof before the surrogate. The plaintiff took out letters; the defendant declined to qualify. The defendant hadinhis possession all the personal property of the testatrix, except certain notes amounting to $400, described in the complaint, which he had executed to the deceased in her. lifetime and which had now fallen into the hands of the plaintiff, his co-executor. At the request of the legatees in the will the plaintiff brought this action as executor against the defendant to recover the amount of the notes. After the action was commenced the defendant also took out letters testamentary and set up that fact as a defense to the action. The defense was sustained and judgment in the trial court and on appeal was rendered in favor of the defendant, who, some four years thereafter, made the motion above mentioned, from the order denying which this appeal is taken.

*O'Brien, Mnmerson dk Ward,*for the appellant.

*Dor win ds Brown,*for the respondent.

*311Haedin, P. J.:

Section 1814 cannot be applied in tbis action, as it was passed after tbis action was commenced and relates to actions commenced after tbe passage. Tbis action was commenced April 16,1879, and tbe section was not passed until May 6, 1880.

“When tbe action was brought the plaintiff was tbe sole executor who bad qualified to act as such. If tbe action had continued on that state of facts it might have been maintained. But, instead thereof, defendant, on tbe 1st of May, 1879, qualified and set up that fact as a defense, and by means of it obtained a holding at circuit and at General Term that an action at law could not be maintained by one executor against a co-executor.

It was tbe act of tbe defendant subsequent to tbe commencement of tbe action which prevented a recovery at law by tbe plaintiff. (See opinion of Smith, J., *Smith*v. *Lawrence,*11 Paige, 206; *McGregor*v. *McGregor,*35 N. Y., 221; *Sanford*v. *Sanford,*45 N. Y., 723; *Hunter*v. *Hunter,*19 Barb., 632; *Whitney*v. *Coapman,*39 Barb., 482.)

We cannot say that tbe plaintiff was guilty of mismanagement or bad faith in bringing tbe action. It was tbe subsequent act of tbe defendant which ousted tbe court of its jurisdiction in the premises.

In *Olcott*v. *Maclean*(11 Hun, 395) a complaint was dismissed, without costs, where an act of congress bad deprived tbe State court of jurisdiction after action brought. (See S. C., 10 Hun, 277; Code Civ. Pro., §§ 3246, 1836.)

Tbe facts which appeared at tbe trial as to whether tbe action was brought, and as to tbe plaintiff’s right then to maintain it, and tbe subsequent act of defendant in qualifying as an executor were proper to be taken into consideration in determining whether the costs should be paid by plaintiff, *“*either out of bis individual property or out of tbe property of the decedent.” (Sec. 1836.) Prom the form of tbe judgment it is reasonable to infer that tbe court did consider these facts and award a judgment against tbe estate only. There is no direction in tbe judgment given by tbe trial court that they be paid “by tbe party personally.” (Sec. 3246.) It was said in *Tolman*v. *S. B. and N. Y. Railroad Company*(92 N. Y., 327), that section 3246 refers to costs in a final judgment rendered in an action. Tbis action was upon notes payable *312to the testatrix, or her order, and had not been indorsed, and they were assets belonging to the estate, and an action in the name of the sole representative of the estate was proper, instead of in the individual name of such representative. This appeal is from an order made upon a motion, made some four years after the entry of judgment.

We are of the opinion that the Special Term was right in denying the motion, and the order should be affirmed, with ten dollars costs and disbursements.

Eollett and YaNN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.