Defendant interposed a demurrer to the complaint, and also made a motion to dissolve the injunction. The demurrer was overruled and an order was granted denying the motion to dissolve the injunction. An appeal was taken from the interlocutory judgment, and also from the order denying defendant’s motion to dissolve the injunction. A decision was made upon the appeal and is found reported in 33 New York State Reporter, 673. It was held at that time that the complaint sufficiently stated a cause of action. It was also stated that, under the circumstances disclosed by the complaint, “it was necessary that plaintiff should bring the action both in his individual and his representative capacity to obtain full relief.” The judgment overruling the demurrer and the order denying the motion to dissolve the injunction were sustained.
In the course of the opinion delivered in that case it is said: “ The complaint alleges with sufficient certainty the payment of the moneys therein stated, and obviously meant that she had received more than enough out of the estate to pay her decree, and that it *356should be adjudged satisfied. * * * The matters alleged in the complaint could not be tried in the surrogate’s court so as to secure the'moneys to be set off against the defendant’s claim. In such cases a party having an equitable set-off can come into this court for relief.” (Citing N. Y. & H. R. R. Co. v. Haws, 56 N. Y. 175.)
It must be assumed that the criticisms made upon the complaint at the trial now under review were treated by the referee as unavailing, and due deference to the decision made when the demurrer was under consideration leads us to the conclusion that the complaint' sufficiently presented the facts, and circumstances relied upon by the plaintiff to have awarded the relief granted by the referee upon the trial now brought in review. (Laney v. Laney, 33 N. Y. St. Repr. 673.)
Upon the first trial before the referee an opinion was delivered by'him in connection with his findings, and that opinion is reported in 47 New York State Reporter at page 99. Following that opinion is the opinion delivered by Lewis, J., in the General Term, which seems to approve of the course of the trial in the cases before the referee on the first occasion as well as -on the second occasion; and that opinion expressly approves of the finding of the referee that the payments made by the defendant in checks amounted to $23,650, and the conclusions reached by the referee, and the mode of reaching them were approved in the opinion, except as to the item of $1,560, being for rent of the Elm street house occupied by Enos Laney. The plaintiff was then given an opportunity to stipulate to deduct from the ' amount of his recovery that item, so as to leave the judgment for $5,612.04. And it was provided that if the stipulation was given the judgment for that amount should be affirmed. The plaintiff omitted to give the stipulation and elected to have a second trial, and .the referee seems to have followed closely the doctrine laid down in the opinion reviewing his former trial.
The appellant, however, challenges the report of the referee on the ground that some parts of it are unsustained by the evidence. Upon a careful inspection of the record it is quite apparent that the conclusions of the referee are sustained by the evidence given before him on the trial now*brought in review. The mode of stating the interest and allowance upon the sundry items was the mode that *357was adopted on the first trial. It seems to have been approved in the opinion of Lewis, J., and the rule thus sanctioned has become the law of this case, and the method adopted ought not, therefore, to be disturbed, reviewing the action of the referee under the opinion so delivered.
The referee reached the conclusion that the execution issued, mentioned in the complaint, was regular and that the levy made by the sheriff upon the property of Enos Laney was sufficient to pay the amount of the execution, and that the plaintiffs are entitled to an accounting for the “ moneys loaned, advanced and paid by said Enos Gr. Laney to said defendant as specified in the finding of fact.” And he also reached the conclusion that the plaintiffs were entitled to a judgment adjudging the decree of the Surrogate’s Court, as it was modified December 27, 1888, which directed the payment by Enos Gr. Laney to the defendant of $5,881.30, paid; and also directed the decree to be satisfied of record. The referee also sustained the injunction restraining the enforcement of that decree.
The plaintiffs have not recovered a more favorable judgment than they might have retained had they given the stipulation which they were afforded an opportunity to give by the decision of the General Term when the case was decided as reported in 47 New York State Reporter, 99.
It is insisted in behalf of the defendant that, because no formal demand was made before the commencement of this action, the plaintiff was not entitled to recover the balance found against her. This is an action in equity, and it is apparent that the recovery of the balance found against the defendant is an incident to the main objects of the action, and a careful inspection of the record seems to indicate that, at the time this action was commenced, the defendant had assumed an attitude inconsistent with the right of the plaintiff to have the balance of the account for moneys advanced to her repaid. Besides, when the action was before the court upon the hearing of the questions raised by the demurrer, the complaint, as it now stands, was sanctioned.
When the case was before the referee on the first occasion, he stated in the opinion then delivered that the advances to the defendant alleged in the complaint were not made on account of *358her distributive share. And he also stated that “ The moneys for which the plaintiff claimed credit on the first accounting were a part of those proved in this action, and the Surrogate’s Court expressly adjudged that they be stricken out of the plaintiff’s account, because they related to transactions not involved in that proceeding and of which the court had no jurisdiction. In the second accounting the plaintiff did not include advances in payments made since the first accounting, and of the character as these stricken .out in the first one. The Surrogate’s Court has not decided whether these advances be allowed or disallowed; it has simply declined to consider the question, and this Court has, at both Special Terms and Q-eneral Terms, approved the decision of the Surrogate’s Court.”
The view taken by the referee on the first occasion was approved' by the opinion of Lewis, J., to which reference has already been had; and it is not deemed necessary to refer further to that question to answer the contention now made in behalf of the appellant in that regard.
This case differs from Neilley v. Neilley (89 N. Y. 352), as in that case the administrator, having a claim against the estate of which he was administrator, by presenting it to the surrogate and having it acted upon, submitted to the jurisdiction of the surrogate, and the determination made by the surrogate was then held to be a bar to a subsequent action to recover for the claim.
We think the learned referee fell into an error in awarding costs against the defendant. The action has failed in some of its important aspects mentioned in the complaint. The plaintiff asked for a judgment of $5,000 for an alleged trespass in issuing an execution for the enforcement of the decree that the defendant had obtained. In that branch of the complaint the plaintiff has been unsuccessful. It was entirely reasonable for the defendant to defend, as she has successfully, against that claim. The case, therefore, falls within the general rule that where, in an equity action, the party seeks to recover more than he is entitled! to and does not succeed entirely, and the victory is in part to the plaintiff and in part to the defendant, the costs should be awarded to neither party. (Law v. McDonald, 9 Hun, 23; Mandeville v. Avery, 44 N. Y. St. Repr. 1; West v. City of Utica, 11 Hun, 540, and cases cited; Cross v. Smith, 32 N. Y. Supp. 676, 677.)
*359Besides, when the plaintiff refused to give the stipulation authorized by the General Term, and insisted upon a new trial, they cast an .unnecessary burden upon the defendant, as appears by the result of the second trial.
Under all the circumstances of the case we have reached the conclusion that the report of the referee, and the judgment entered thereon, should be modified by eliminating therefrom the costs of the action.
All concurred.
Judgment modified by striking out the award of costs of the action, and, as so modified, affirmed, without costs to either party on this appeal.