The plaintiff in this action claims that costs are recoverable as a matter of course against an executor or administrator, to be levied of the assets of the deceased. I think that this position cannot be maintained.
The Code, section 317, declares that in an action prosecuted or defended by an executor or administrator, “ &c.,” costs shall be recovered as in an action by and against a person prosecuting in his own right. “But this section shall not be construed to allow costs against executors and administrators where they are now exempted therefrom by section fifty-one” (2 Rev. Stat., 90).
This section of the Code is general in its character, and alone might be construed to establish a rule which places all representative parties upon the same footing as to costs, as those parties who are acting for them*260selves, except that it compels the estate to pay the costs, unless the court direct that they be paid by the executor or administrator personally, for mismanagement or bad faith in the action or defense. It must be considered,, however, in connection with section forty-one of the Revised Statutes, which restricts its application only to cases where an executor or administrator is a plaintiff, and fails to recover in the action.
This provision declares that no costs shall be recovered in any suit at law, against any executors or administrators, to be levied of their property, or of the property of the deceased, unless it appear that the demand upon which the action was brought was presented, &c., “and that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same,” &c. The plain and manifest interpretation of the provision of the Revised Statutes cited is, that in cases where the action is against the defendants as executors or administrators, no costs can be recovered unless it be by order of the court. Such cases are expressly excepted from the provisions of section 317 of the Code. The Code was not intended to provide merely a personal exemption to the executor or administrator from liability for costs, and to hold the estate liable in all cases, but to leave the Revised Statutes in full force where an action was brought against an executor or administrator.
This construction has been generally followed by the courts in such cases, and, I think, is sustained by abundant authority.
The defendant in a suit brought by an executor or administrator is entitled to costs without a motion, when a successful defense is interposed (Woodruff v. Cook, 14 How. Pr., 481; Curtis v. Dutton, 4 Sandf., 719). But when actions are brought against an executor or administrator, and a judgment obtained, no costs can be recovered, unless the court, in the exercise of its *261powers, upon motion adjudge that it is a case in which costs should be paid, under the statute referred to, by the estate or its representatives (Fox v. Fox, 22 How. Pr., 453; Mersereau v. Ryerss, 12 Id., 390). The case cited by the plaintiff’s counsel (9 Bosw., 696), which holds that the estate is chargeable in cases where the plaintiff is successful in a suit against the representative, is a special term decision in conflict with the cases cited, and, I think, does not present a correct interpretation of the provision of the Code and of the Revised Statutes which has been referred to. In any aspect in which the question may be considered, I am of the opinion that costs cannot be recovered in an action against an executor or administrator, except upon an application by motion to, and an order of the court.
It is insisted by the plaintiff’s counsel that the defendant having appealed from the judgment after it was legally perfected, could not move to set it aside for irregularity. I incline to think that the taxation of the costs without the authority of the court, and their insertion in the judgment roll, was rather more than a technical irregularity.
It was not a mere formal error, but the adjustment and allowance of an amount of money not authorized by law, and a substantial defect in the judgment, which, if it did not render the judgment void, should entitle the party to some relief (1 Burr. Pr., 474). The rule that irregularities may be waived by an appeal, has never been applied to a case like this; and the authorities cited to sustain the doctrine contended for, are cases of technical and formal defects which do not affect or impair the validity of the entire judgment or proceeding (Cotes v. Smith, 29 How. Pr., 331; Mayor v. Lyons, 1 Daly, 300; Clumpha v. Whiting; 10 Abb. Pr., 448; D’Ivernois v. Leavitt, 8 Id., 60; Vail v. Remsen, 7 Paige, 206; Brady v. Donnelly, 1 N. Y. [1 Comst.], 126).
*262But even if this motion may be regarded as founded upon an irregularity alone, inasmuch as the costs were not readjusted until after the appeal had been taken, I am inclined to think that the appeal could not affect the subsequent proceeding upon the readjustment.
It may also be added that the courts indulge great liberality in disregarding mere technical irregularities when they intefere with the promotion of justice; and parties are frequently allowed to come in after being irregular, upon terms, and to present them case. In this case, the special term made it a condition of allowing the defendants to make a motion to vacate the judgment that he pay the costs of opposing the motion, and thus inflicted a penalty for the alleged irregularity.
The fact that the defendant served an offer to allow judgment to be entered for a specific sum, is not such a recognition of liability for costs as to compel the payment of costs under any and all circumstances. The answer to this proposition is,- that this offer was refused, and hence both parties occupy precisely the same position as they did before it was made.
hi or is it proper to consider on this appeal the question whether the plaintiff is entitled to costs by reason of an unreasonable resistance to the claim litigated. That is a matter which will more appropriately arise upon a motion for costs when both parties can be heard, and is not now before us.
I think that the special term committed no error in setting aside the whole judgment. The judgment was clearly erroneous in having costs inserted, and therefore the whole was properly vacated. The fact that it was thus erroneous in part, did not fairly entitle the plaintiff to costs of the appeal, and he probably would be entitled to interest as costs under the statute {Laws of 1869, 1870) even if he should fail in obtaining an allowance of costs on motion.
This, however, is not material to the disposition of *263the questions arising on this motion, if I am correct in the views I have before expressed, and should not intefere with the affirmance of the order.
I think that the order should be affirmed with costs.
Peckham and Ingalls, JJ., were in favor of affirming except as to costs, and it was accordingly—
Ordered, That judgment stand except as to costs ; and that these should be stricken out of the judgment, without prejudice to an application hereafter for costs, and that no costs be allowed to either party on this appeal.
Present, Peckham, Ingalls and Miller, JJ.