BAXTER against DAVIS

BAXTER against DAVIS. Supreme Court, First District; Special Term, March, 1867. Costs.—Liability of Adahnistbatob. One who, in the capacity of administrator, commences an action for the benefit of the estate, does not become personally liable for costs, by the fact that 1 before judgment, he is removed from the administration. Motion to set aside a judgment and execution. The action was brought by George W. Baxter as an administrator, and in behalf of the estate of his intestate, against Arnold A. Davis. Pending the suit, the administrator was removed; after which, defendant, being successful, entered judgment against him personally for costs. This judgment and the execution issued upon it, the plaintiff moved to set aside. [MAJORITY — E. Darwin Smith, J.] E. Darwin Smith, J. This suit was commenced by the plaintiff as administrator, and had prosecuted for the benefit of the estate. The removal of the plaintiff from the office of administrator did not make it a personal action of his. He is not liable for costs except upon an express order charging him personally for such costs for misconduct. The judgment was irregular so far as it is a judgment on the plaintiff personally. Plaintiff should have applied to court for costs against plaintiff, personally, before execution of such judgment. The execution must be' retained, and the judgment too, with $10 costs; or, if defendant elects, he may divide the judgment so as to charge the costs upon the estate only.