Marryatt v. Riley.

Referring to the fact that the amounts due on the contract had been paid out of the proceeds of the sale of the real estate, the surrogate says: "They were paid out of the land sold in the first instance as a matter of necessity, for being liens, a good title could not be given to the purchaser without paying them." The surrogate then discusses the ultimate fund out of which these debts were to be discharged, and concluding that the builder, although he had a lien upon the land, had also a right of action against the administratrix, concludes that ultimately the personal estate was bound to discharge these liabilities.

But whether these liens were filed before or after the death of the intestate, would not, in my view of the law, make any difference. The special law which governs this class of contracts, gives a right to the lien for all moneys which grow due under the contract; and to hold that the death of one of the parties deprives the other of his security, is to introduce an element of insecurity totally inconsistent with the avowed intent of the law.

I am of opinion, therefore, that the plaintiffs are entitled to enforce their lien and to have the usual decree in such cases, with costs. The decree may provide, if the defendant Riley elect, that the administratrix pay her out of the personal estate of the intestate, whatever sums the said Riley may be compelled to pay to discharge the lien, and to defray the costs and expenses of this action as the same may be taxed and allowed to the plaintiffs.

II. April, 1877. Appeal from order denying costs. The foregoing decision was afterwards modified as to costs upon a motion for an extra allowance. The motion was in the nature of an appeal from the taxation.

Marryatt v. Riley.

Mr. Justice McCUE, before whom the motion was heard, delivered the following opinion:

"The mechanics' lien act provides that costs shall be allowed by the statutes in civil actions (Laws 1873, ch. 478, 6).

"The Code gives costs in an action defended by an executor or administrator as in an action against a person defending in his own right; the costs are chargeable only upon the estate or fund unless the court shall direct the same to be paid personally by the defendant for mismanagement or bad faith in such defense. This section is not to be construed to allow suits against executor or administrator where they are now exempted by sec. 41, tit. 3, ch. 2 of the Revised Statutes.

"Section 41, above referred to, declares that costs cannot be collected against executor or administrator to be levied on their property or of the property of the deceased, unless it appears that the demand has been presented within the time provided by law (six months) and payment has been unreasonably resisted or neglected, or there has been a refusal to refer; in which case the court may award costs against the property of the deceased, having reference to the facts as they appeared in the trial.

"The contract was made in February, 1876. The owner died in March following, and the defendant Sophia Palmer was appointed administratrix in the same month; contract was completed about May 1, 1876, and on the 12th of the same month the lien was filed. This action was commenced on or about May 29, 1876.

"The inventory of the decedent's estate was filed on May 8, 1876, and as it therein appears the personal estate amounted to $505.14; deducting therefrom the amount set apart by the statute for the widow, the net personal estate reached the sum of $355.14.

"In view thus of all the facts and circumstances of

Marryatt v. Riley.

the case, I do not think that it can be said that the payment of the plaintiffs' claim was unreasonably resisted or neglected; but it is a proper case for the exercise of the discretion vested in the court to deny the usual taxable costs. The plaintiffs, however, should have their proper disbursements.

"The decision heretofore made by me in respect to costs to be modified accordingly, and judgment should be entered only for the amount of the principal, interest and disbursements."

From this decision the plaintiffs appealed.

Rufus L. Scott, for appellants.-I. This case was disposed of as though it were against an executrix, without passing judgment as to the right of costs, independent of that fact; whereas the defendant Riley incurred costs in her individual capacity.

II. The costs could not in any event be charged to the estate (Hallam v. Weed, 24 Barb. 546).

III. The plaintiffs are entitled to costs as a matter of course (Code, § 304; Trust v. Pierson, 1 Hilt. 292; Kneeland's Lien Law, 82).

IV. It is held that mortgages are excluded from the application of section 304 by the language of section 308, which implies the reverse as to lien suits (Gallagher v. Egan, 2 Sandf. 742).

James J. Rogers, for respondents.

REYNOLDS, J.-In this case the question arises whether, under the act passed April 24, 1862, providing for mechanics' liens in Kings and Queens counties, the prevailing party, in an action brought to foreclose a lien, is entitled to costs as a matter of course.

Subdivision 4 of section 2 of said act provides, in broad and comprehensive terms, that the pleadings and practice in such actions shall be the same as in civil actions; that costs shall be taxed and recovered pursuant to the "law, rules and practice in such civil ac

Marryatt v. Riley.

tions;" and that "such action shall be governed, and the judgment thereon enforced, in the same manner as upon issues joined and judgments rendered in all other such civil actions aforesaid ;" and in section 6 it is more explicitly provided that "costs shall be allowed npon the same principles and by the same rules in the action as they are now allowed by statute in civil actions aforesaid, and shall form a part of the judgment, except in cases where the amount of recovery is less than fifty dollars, no more costs than damages shall be allowed to the party recovering such judgment."

66

It is claimed that the language of the section last quoted imperatively requires the allowance of costs to the successful party. I do not so understand it. I think the plain intention was to put these actions upon the same ground as to costs, as if they had been embraced by the Code. Costs in these actions are to be allowed upon the same principles " as in other cases. Turning to the Code on the subject of costs, we find that in certain specified classes of actions, costs shall be given or withheld, according to the rules which are prescribed by section 306. In other actions costs may be allowed or not, in the discretion of the court." Actions for the foreclosure of mechanics' liens, are plainly not among the classes mentioned in section 304, and come within the designation, "other cases." I think it follows that the allowance of costs, in an action under this statute, is in the discretion of the court. Any other construction of the statute would apply different "principles and rules" from those which govern other civil actions, and which would have governed this, if it had been in existence at the time of the adoption of the Code. The legislature, on the other hand, seem to have meant to place it on the same footing as if it had been originally embraced in that system. This conclusion is strengthened by reference to section 13 of the act, which provides that

Elmore . Hyde.

the contractor or sub-contractor may be sued with the owner, and in case of recovery against the contractor or sub-contractor, in addition to judgment against the owner, the court may award costs against such of the parties as shall be just. The reasons given by the court in this case for the refusal of costs to the plaintiff, seem to have been sufficient, and we do not feel called upon to interfere with that disposition of the matter.

The order should be affirmed.

NEILSON, Ch. J., concurred.

ELMORE v. HYDE.

N. Y. Common Pleas; Special Term, March, 1877. ATTORNEY.-PRACTICE.-PARTIES.-WITNESS.

An application for the examination of an adverse party before trial under section 391 of the Code, should explicitly allege his knowledge of specific facts and circumstances, and that he can testify thereto, and that such facts are material to the case of the applicant.

The general charge by an attorney, made on behalf of his client, on information and belief, of a knowledge by all the defendants, in gross, of the various facts alleged, is no ground for the examination of either one of them.

It seems, that unless an application for such an examination is predicated upon some reliable evidence, as to matters precisely disclosed and shown positively or presumptively to be within the adverse party's knowledge, any order for his examination is without the jurisdiction of the officer to whom the application is made.

Application by plaintiff for examination of a defendant before trial.

This action was brought by Lyman Elmore and

VOL. II.-9.