James Oliver, Respondent, v. Esther J. Sahler, as Administratrix, etc., of Frank Y. Sahler, Deceased, Appellant

James Oliver, Respondent, v. Esther J. Sahler, as Administratrix, etc., of Frank Y. Sahler, Deceased, Appellant. Third Department, November 22, 1918. Costs — action against administrator upon note — judgment not including certificate showing that action was unreasonably resisted or neglected. A judgment upon a note in an action against an administratrix in her representative capacity should not include costs, where there is no certificate of the trial judge showing that the action was unreasonably resisted or neglected. Kellogg, P. J., dissented. Appeal by the defendant, Esther J. Sahler, as administratrix, from "a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of May, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes. Virgil B. Van Wagonen [Amos Van Etten of counsel], for the appellant. Frank W. Brooks [John W. Eckert of counsel], for the respondent. [MAJORITY — Lyon, J.:] Lyon, J.: This is an appeal from a judgment entered upon a note of $3,000, and from an order denying a motion for a new trial. The defense was want of consideration. The verdict is right. The judgment, however, includes costs, and that particular is wrong. (Code Civ. Proc. §§ 1835, 1836.) There was no certificate of the trial judge showing that the action was unreasonably resisted or neglected. The judgment should be modified by deducting the costs, and as so modified affirmed. All concurred, except John M. Kellogg, P. J., dissenting and voting for affirmance. Judgment and order modified as per opinion and as so modified affirmed, without costs.