majority">By the court—Balcom, Justice.

The judgment for costs in the action is against the plaintiff personally, and the question is presented, whether such a judgment could be entered upon the verdict without the direction of the court.

The action was not necessarily prosecuted by the plaintiff in his representative character. The authorities show that the alleged cause of action upon which the suit was brought, arose when the defendant refused to give up the mare on the demand of the plaintiff, and executors and administrators should sue in their own right in such a case, and never in their representative character, only where the testator or intestate had a complete cause of action in his lifetime. (5 Cowen, 267; 4 id. 87; 11 *486Johns. 403; 10 East, ,293; 9 Wend. 486; Gra. Pr. 2d ed. 739.) It was well settled, prior to the Code, that an executor or administrator was personally liable for costs in an action on a demand not necessarily prosecuted in his representative capacity. (3 Hill, 441; 4 id.571 Denio, 626; also see the authorities before cited.)

Section forty-one, of title three, chapter six, of the second part of the Revised Statutes, (2R. S.p. 90,) which is in force by reason of a clause in section 317 of the Code, relates only to actions brought against executors and administrators, and not to such as are brought by them : and section, seventeen, of title one, chapter ten, of the third part of the Revised Statutes, (2 R. S. p. 615,) which exempted executors and administrators from liability for costs in certain actions prosecuted by them, is repealed by the Code. (Code §468; Curtis agt. Dutton, 4 Sand. 719.)

Section 317 of the Code, embraces the entire subject provided for in the above-mentioned section seventeen of the Revised Statutes. This section of the Revised Statutes is inconsistent with section 317 of the Code, and it is not saved from the effect of the repealing part of the Code, by §471 of the Code.

Section 317 of the Code declares that, in an action prosecuted by an executor or administrator, costs shall be recovered as in an action by and against a person prosecuting in his own right, but such costs shall be chargeable only upon or collected of the estate represe?ited, unless the court shall direct the same to be paid by the plaintiff personally, for mismanagement or bad faith in such action. Under this section, if an executor or administrator fails in an action prosecuted by him in his representative capacity, the defendant recovers costs as matter of course, to be collected of the estate represented ; but he cannot enter judgment for costs against the plaintiff personally, unless the court directs the same to be paid by the plaintiff personally, “ for mismanagement or bad faith in such action.”

There must now be a direction of the court, to authorize a defendant to enter judgment for costs against an executor or *487administrator personally, in an action not necessarily prosecuted in the right of his testator or intestate. (See 12 How. Pr. Rep. 305.)

The court did not direct that the plaintiff pay the costs of the action personally, therefore the judgment for costs against him personally was erroneous, The order appealed from must be reversed, and the judgment for costs against the plaintiff personally, set aside, with $10 costs of the appeal, and $10 costs of the motion to set aside the judgment.

Order accordingly.

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