Mattison, et al. v. Palser.

1843 of the Code of Civil Procedure to enforce the payment of a note made by a decedent to the extent of the interest in realty received from said decedent, is an action to recover upon the note, and is subject to the six years' Statute of Limitations, with the three years added by section 1844, and such action must be brought within nine years (Adams v. Fassett, 149 N. Y., 61-68; Mead v. Jenkins, 27 Hun, 570, 95 N. Y., 31).

The further argument that the debt against Mary King was kept alive by two payments on the mortgage made by one of her sons, George R. King, is not sound, for the reason that such payments were not made in her interest, and, had they been, would not have had the effect of reviving the debt (Butler v. Johnson, 111 N. Y., 204-218). Besides, it is here made to appear that these payments were made by the son as agent of the estate of his grandfather for interest on a mortgage covering property of the estate. This mortgage, it is true, was the one given to secure the note which his mother had signed, but he had no knowledge, as he testified, of the existence of the note, and if he had it would have made no difference, since his object and intent, as agent of the estate of his grandfather, was to make payment of interest on the mortgage for the purpose of protecting the property of the estate. The burden is always on the party seeking to charge another to show that the payments necessary to take the debt out of the statute were made by the debtor for his own account and with reference to that particular debt (Littlefield v. Littlefield, 91 N. Y., 203, 210; Murdock v. Waterman, 145 N. Y., 55; Crow v. Gleason, 141 N. Y., 489). The Statute of Limitations, therefore, is also a sufficient reason for reversing the judgment as against the defendants King.

As to Martha King, assuming that the letters were competent and the payments binding upon her, they would be sufficient to revive the debt if the New York Statute of Limitations applied. The debt sought to be enforced, however, was originally evidenced by the note; and it is, in

Mattison, et al. v. Palser.

fact, a deficiency judgment, arising after sale of collateral, which is sought to be charged against and made a lien upon the property which, as heirs or devisees, the defendants named received from Martha King. Unless this can be regarded as an action involving "the title to or possession of real property in the State," recovery, it appears, would be barred by the Statute of Limitations of New Jersey, which was the home of Martha King. The New Jersey statute bars an action upon a note after six years; and, under section 390 of our Code of Civil Procedure, it is provided that, against a non-resident, an action upon a demand barred by the law of his residence cannot be maintained unless it involves "the title to or possession of real property within the State," except where the cause of action originally accrued in favor of a resident of the State, or where such person became a resident of the State, or the cause of action was assigned to or was thereafter continuously owned by a resident of the State. The plaintiffs and the testators were all formerly residents of the State of Rhode Island, and there is no evidence that any of them ever resided in the State of New York; and Martha King, from 1877 to the time of her death, was a resident of New Jersey.

Under such circumstances a serious question arises whether the Statute of Limitations of New Jersey, which would be a complete bar, is not the one that applies. Without deciding that question, however, as it is unnecessary to do so, we think for the reasons already stated that the judgment against the persons here sued as heirs at law of Martha King be reversed.

The judgment, therefore, as to all the defendants must be reversed and a new trial granted, with costs of this appeal to each separate set of defendants and abide the

event.

VAN BRUNT, PJ., PATTERSON and MCLAUGHLIN, JJ., coneur: RUMSEY, J., concurs in result.

Hascall v. King.

VIRGINIA K. HASCALL, RESPONDENT, v. VINCENT C. KING, JR., AND ANNA LOUISE KING, INDIV. AND AS EX'RS, &C., APPELLANTS; MAMIE K. SMITH AND HATTIE K. HILTON, RESPONDENTS.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT NOVEMBER, 1900.

$ $1200, 3230, 3238, 3253.

Costs and extra allowance. Scope and interpretation of order of Court of Appeals.

When costs are given to abide the event by the Court of Appeals, such formula includes all the costs of the action up to and including the decision of the Court of Appeals. When costs are given by such court it means the costs in that court to the successful party, and is so limited in cases where the costs are discretionary. The latter direction, therefore, is to be understood as making no attempt to control the direction as to costs already made by the court below, or to control its action in respect of such costs as may be thereafter properly awarded.

When the Court of Appeals makes specific direction as to costs, in cases where the same are discretionary, the specific direction controls and nothing is left but to follow such direction. The language of an order of the Court of Appeals granting "costs to the appellants in all courts, and to the respondent in this court," construed not to authorize separate bills of costs to different appellants. An order for the Special Term of the Supreme Court awarding separate bills of costs to each appellant, therefore reversed.

Under such an order the Special Term of the Supreme Court had no power to grant an extra allowance.

(Decided November, 1900.)

Appeal from an order granting costs and allowance to the plaintiff, and costs and allowance to the defendants Smith and Hilton, and from an order granting separate bills of costs to the plaintiff and the defendants Smith and Hilton.

Hascall v. King.

William A. Boyd for appellants.

James F. McNabor for respondents Smith and Hilton.

Peter B. Olney for respondent Hascall.

HATCH, J.-This action was brought to procure an adjudication of the will of the late Vincent C. King, declaring the same invalid, and incidentally for a partition of his real estate. The litigation involved, among other things, the validity of the trust attempted to be created by the sixth clause of the will. The trust estate so attempted to be created consisted chiefly of real estate of the value of $150,000. The cause was tried at Special Term, where the complaint was dismissed and the will adjudged to be valid, with costs and an allowance of $1,000 to the defendant executors, payable out of the estate.

Upon an appeal to the Appellate Division, this department, the judgment was affirmed, with costs to the defendant executors and trustees, payable out of the estate (28 App. Div., 280). The Court of Appeals (162 N. Y., 134) modified the judgment and affirmed the same as modified, with costs to the appellants in all courts, and to the respondents in this court, payable out of the estate."

The attorney for the plaintiff and the attorney for the defendants Smith and Hilton, respectively, made motions at Special Term upon the pleadings and proceedings and upon affidavits and the remittitur of the Court of Appeals for an extra allowance in addition to costs. Upon these motions two orders were made and entered, in one of which the plaintiff was allowed her costs and disbursements, to be taxed by the clerk and inserted in the judg ment, and the further sum of $750 allowance; and the defendants Smith and Hilton were also allowed the amount of their costs and disbursements, to be taxed, and the further sum of $250 as an allowance, the same to be

Hascall v. King.

inserted in the judgment and to be paid out of the estate. By the other order the plaintiff and the appellants Smith and Hilton were allowed their costs in all the courts, and costs to be allowed to the respondents in the Court of Appeals. Under these orders the plaintiff taxed costs amounting to $466.63 and an allowance of $750, and the defendants Smith and Hilton taxed separate bills of costs amounting to $379.70 and an allowance of $250 each. In each of these bills of costs was included separate costs in the Court of Appeals, Appellate Division and Special

Term.

From the first order, and from so much of the second as granted separate bills of costs to the plaintiff and the defendants Smith and Hilton, this appeal is taken.

It seems to be now the settled rule that costs in an equity action must be granted to the party entitled thereto by an order of the court entered upon its judgment, and without such order no costs are awarded (Downing v. Marchall, 37 N. Y., 380; Code Civil Procedure, section 3230). This discretion to award costs is possessed by every court where the question is properly before it (Harrington . Robinson, 71 N. Y., 280; Chipman v. Montgomery, 63 N. Y., 221-238). The question of costs, therefore, in any equity action is one of the issues involved; it is primarily presented at the trial court, and while, as a rule, the appellate tribunals will not interfere with the discretion exercised by the court below, yet, as it furnishes one of the issues for determination by appellate tribunals, it is always before such court for disposition, together with the other issues which the case pre

sents.

It is somewhat difficult to determine just when the trial court ceases to possess power over the question of costs, or to determine when the appellate tribunal has fully exercised its unquestioned power, in equitable actions, upon the subject. It is quite clear that when the Court of Appeals has determined the question of costs and directed to