dissent">Ingraham, J. (dissenting):

The action was commenced by the plaintiff in his representative capacity to recover possession of what was alleged to be property of the plaintiff’s testator, the complaint alleging that the deceased had possession of this property at the time of her death, but that immediately after her death the defendant wrongfully took possession *14of it and lias refused to return it to the plaintiff, although duly demanded. The answer alleged that the defendant was the owner of the property. This action came on for trial before a jury, who rendered a verdict for the defendant. Nothing was said upon the trial about the costs upon this verdict, but the judgment was entered by the clerk awarding judgment against the plaintiff personally for the costs.

I think this judgment was unauthorized. As before stated, the action was brought by the plaintiff in his representative capacity. It was tried as an action by the estate against the defendant, and defendant obtained a verdict which authorized the entry of a judgment against the plaintiff in his representative capacity for costs. Upon this record the clerk was not authorized to enter a judgment against the plaintiff personally without some special order of the court.

The case of Mullen v. Guinn (88 Hun, 128) is not in point, for that was an appeal from an order granting a motion that the plaintiff should be personally liable for the costs. No such motion was made in this case, and the judgment to be entered must depend upon the verdict of the jury, which was in favor of the defendant against the plaintiff as executor of the estate of the decedent. Any judgment entered upon such a verdict without some further direction of the court must, it seems to me, be against the plaintiff in his representative capacity. Section 3246 of the Code of Civil Procedure provides that in an action brought by or against an administrator or executor in his representative capacity, costs must be awarded as in an action by or against a person prosecuting or defending in his own right, except as otherwise prescribed in sections 1835 and 1836; but they are exclusively chargeable upon and collectible from the estate, fund or person represented, unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action. As this action was brought by an executor in his representative capacity, and as the verdict was'against him as .such, it seems to me that the only judgment that cpuld be entered was one against the estate represented.

The order appealed from should, therefore, be reversed and the motion granted.

Order affirmed, with ten dollars costs and disbursements.

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