HUNT a. CONNOR

HUNT a. CONNOR. Supreme Court, First District; General Term, March, 1864. Exeoutobs’ and Administbatobs’ Costs on Appeal. The provisions of the Bevised Statutes (2 Re». Slat., 90, § 41,) forbidding the recovery of costs against executors or administrators, except in certain cases, and referred to in section 817 of the Code, apply only to the general costs of the action, and have no reference to appeal or interlocutory costs. Appeal from an order allowing costs of appeal to the plaintiff. This action was brought by Samuel J. Hunt against Catharine A. Connor, administratrix of John H. Connor, upon a note of ■$3,729.13' made by defendant’s testator. The case was three times tried, resulting, on the first two occasions, in a verdict for defendant: the third trial resulted in a verdict for the plaintiff. The further facts sufficiently appear from the opinion. The defendant appealed. Robert A. Adams, for the appellant. ■Jesse C. Smith, for the respondent. [MAJORITY — Clerke, J.] 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.