1900] Lamphere v. Lamphere. brought against him in his representative capacity, unless it appears that when the claim was presented to him by the plaintiff payment thereof was unreasonably resisted or neglected. If such facts appear, the court may render costs against the estate, or the executor, etc., personally; and, if the action is in the supreme court, these facts must be certified to by the judge or referee before whom the action is tried. Section 3246 provides that “in an action brought by or against an executor or administrator 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 of this act ;" and under this section it has been held that, if the executor defeats the plaintiff's claim, he is entitled to costs against him as a matter of right. Adams v. Olin, 78 Hun, 309; 60 St. Rep. 695; 29 Supp. 131. Reading these several sections together, I reach the conclusion that the defendant's construction is the correct one. The scheme of the statute seems to be that the liability of a party to pay costs to an executor or administrator shall be fixed by the same provisions which control costs as between parties litigating in their own right, but that costs shall not be recovered against executors or administrators unless the unreasonable rejection of the claim referred to in sections 1835 and 1836 is made to appear. In the case at bar plaintiff's action is not such a one as entitled him to costs as of course, under either of the subdivisions of section 3228. By the clear provisions of section 3229, therefore, the defendant was entitled to recover them. It is true that, if plaintiff had recovered more than $50, he could not have had costs against defendant because of the provisions of sections 1835 and 1836; but nevertheless he would, in that event, have been entitled to them so far as the provisions of section 3228 were concerned, and hence no costs against him could have been allowed. This construction works no injustice to a party holding a claim of less than $50 against a deceased party. He may, within the prescribed time, present such claim to the executor or administrator, and, if rejected, he may at once sue it in a justice's court. If Appellate Division. the executor offer to refer, the claimant may still decline the reference, and bring his action before the justice. If, however, he accept the reference, he will have elected to prosecute his claim in an action in the supreme court, and in that event he must pay costs to his opponent. In this respect he stands in no different position from that which any party occupies who seeks to enforce by judgment in a court of record a mere claim for money in an amount less than $50. In such an effort, whether it be against an executor or a defendant in his own right, the plaintiff must pay the costs. Had this plaintiff brought this action in a justice's court, no costs would have been rendered against him, and he would have been entitled to recover costs, except so far as he would have been prevented by sections 1835 and 1836. But he chose the method of a reference, which took him into the supreme court, and hence he must be controlled by the rules governing costs in that court. The plaintiff claims that his action is one mentioned in subdivision 3 of section 3228, because, although less than $50, it has never been rejected by the defendant. If this claim were correct, he would have been entitled as of course to costs, under section 3228, and the defendant would not have been entitled to them. But the claim is not sustained by the record. The written rejection therein appearing is clearly sufficient, and all that the statute requires. I am of the opinion that the decision of the referee was correct, and that the clerk properly taxed the costs as therein directed. The judgment and the order should therefore be affirmed, with costs. All concur, except KELLOGG, J., who dissents. Higgins v. Sharp. HIGGINS v. SHARP. [164 N. Y. 4; 58 N. E. 9.] (Court of Appeals. Oct. 2, 1900.) MARRIAGE-ACTION TO ANNUL-COUNSEL FEES-ALIMONY. Where a husband sues to annul the marriage, and the wife asserts its validity in her answer, the supreme court has power, under Code Civ. Proc. §§ 1742-1755, vesting in such court general jurisdiction over actions to annul marriages, to grant her counsel fees and alimony pendente lite, since such general jurisdiction carries with it by implication the necessary incidental power to award counsel fees and alimony. Appeal from supreme court, appellate division, second depart ment. Action to annul a marriage by Thomas C. Higgins against NOTE.-ALIMONY AND COUNSEL FEES IN ACTION TO ANNUL MARRIAGE. a. Temporary alimony and counsel fees. 1. In action by or in behalf of the husband. 2. In action by the wife. b. Permanent alimony. a. Temporary alimony and counsel fees. 1. In action by or in behalf of the husband. The court has power, in an action by the husband to annul a marriage on one of the grounds specified in the Code of Civil Procedure, to grant the defendant alimony and counsel fees pendente lite. Griffin v. Griffin, 47 N. Y. 134. North v. North, 1 Barb. Ch. 241. O'Dea v. O'Dea, 31 Hun, 441; 101 N. Y. 23; 4 N. E. 110. Gertrude S. Sharp, otherwise called Gertrude S. Higgins. From an order awarding defendant counsel fees and a weekly allowance pendente lite, plaintiff appealed, and the question of the power of the supreme court to grant counsel fees and alimony in an action against the wife to annul the marriage, and in which she asserted the validity of the marriage in her answer, was certified to the court of appeals. 64 N. Y. Supp. 1137. answered in the affirmative. Question Argued before PARKER, C. J., O'BRIEN, BARTLETT, HAIGHT, VANN, LANDON, and CULLEN, JJ. Edward P. Orrell (Edward W. S. Johnston, counsel) for appellant. A. E. Lamb, for respondent. O'BRIEN, J. The order from which this appeal was taken awarded to the defendant counsel fees and a weekly allowance as ALIMONY AND COUNSEL FEES IN ACTION TO ANNUL MARRIAGE,-continued. Isaacsohn v. Isaacsohn, 3 Law Bull. 73. Lee v. Lee, 4 Civ. Pro. 321; 66 How. Pr. 207. Sinn v. Sinn, 3 Misc. 598; 52 St. Rep. 855; 23 Supp. 339. Aff'd without opinion, 140 N. Y. 636; 35 N. E. 892. Wabberson v. Wabberson, 27 Misc. 125; 91 St. Rep. 405; 57 Supp. 405. Appleton v. Warner, 51 Barb. 270. There is no statutory provision in terms authorizing the court, in an action by a husband for the annullment of a marriage, to grant the wife temporary alimony and counsel fees, but such power exists as an incident of the jurisdiction of the court in those cases. Griffin v. Griffin, 47 N. Y. 134. O'Dea v. O'Dea, 31 Hun, 441. Aff'd without opinion 95 N. Y. 667. And it may be said that the power of the court to grant allowances for temporary alimony and counsel fees in other matrimonial actions is not based wholly upon statute, but rests to some extent upon the practice of the court as it existed before the statute. North v. North, 1 Barb. Ch. 241. alimony during the pendency of the action. The action was brought by the plaintiff to annul a ceremonial marriage with the defendant, entered into in this state on the 19th day of June, 1894. It appears from the pleadings and papers used upon the application in which the order was made that the defendant was married in the state of Ohio, in December, 1888, to one Frederick H. Sharp; that in 1891 she instituted an action against him in the court of common pleas of that state for an absolute divorce. The summons in the action was served upon the husband by publication and by mail at Brooklyn, in this state, where, it seems, he then resided or was found. In May, 1892, the court entered a decree dissolving the marriage, and it seems to be conceded that this judgment was authorized by the laws of that state, and is there held to be valid. The defendant then married the plaintiff in this state, as already stated. The plaintiff now alleges that the defendant represented to him that she was legally divorced ALIMONY AND COUNSEL FEES IN ACTION TO ANNUL MARRIAGE,-continued. Alimony pendente lite and counsel fees may, under proper circumstances, be allowed in an action by a husband to have his marriage with the defendant declared void, on the ground that she had a former husband living at the time of the marriage. North v. North, 1 Barb. Ch. 241. O'Dea v. O'Dea, 31 Hun, 441; 101 N. Y. 23; 4 N. E. 110. Appleton v. Warner, 51 Barb. 270. Hopper v. Hopper, 92 Hun, 415; 71 St. Rep. 664; 36 Supp. 664. Sinn v. Sinn. 3 Misc. 598; 52 St. Rep. 855; 23 Supp. 339. Wabberson v. Wabberson, 27 Misc. 125; 91 St. Rep. 405; 57 Supp. 405. And in an action by the man against his alleged wife to annul a marriage by reason of her former marriage, in which the latter is successful, it is proper for the court, upon the final hearing, to award her extra expenses and counsel fees beyond the taxable costs. Griffin v. Griffin, 47 N. Y. 134. A counsel fee of $750 is proper in an action by the husband to annul a marriage by reason of the former marriage of the defendant, where the validity of three marriages and the construction of the laws of at least four states is involved. Sinn v. Sinn, 3 Misc. 598; 52 St. Rep. 855; 23 Supp. 339. Aff'd without opinion 140 N. Y. 636; 35 N. E. 892. |