It was certainly irregular _to enter judgment for costs, against the executors, without an application to the court, and special leave granted. The referee was not the court, and had no power to award costs against the executors. The plaintiff could not by any allegation or allegations in his complaint make the question of costs a proper question for the referee no try or determine.
The plaintiff’s motion for an extra allowance, and the order made for an extra allowance, assumed that the referee had power to award costs, and had awarded them ; for clearly an order for an extra allowance of costs could not be *438made before the plaintiff’s right to recover their general or ordinary taxable costs had been determined.
The statute does not permit the recovery of costs against executors unless it appear that the'demand was unreasonably resisted or neglected, or that they refused to refer the same. (2 R. S. 90, § 41. Code, § 317.) In this case it is impossible to say that the executors refused to refer the same ; unless a refusal to pay is, or should be regarded as, a refusal to refer. The very words of the statute would appear to forbid such a construction of it. The refusal to refer is one thing, and the unreasonable resistance or neglect of payment is another thing. They do not mean the same thing in, or out of, the statute.
The question is, then, did the executors unreasonably resist or neglect the payment of the demand or claim ? In .view of ■ the history of the case, and of the litigated questions in it, how can we say that they did ? On the first trial, they obtained. a judgment, which was affirmed at general term, but reversed in the Court of Appeals. We must conclude that the question of their liability was a question of liability under special circumstances, and by no means free from doubt. It certainly can not be said that the motion papers on the part of the plaintiff show that the demand was unreasonably resisted or neglected by the executors ; and it was for the plaintiff to show this. It appears that the executors would have successfully resisted the demand, had it not been for the lucky hit, or persevering energy of the plaintiff, in carrying the case to the Court of Appeals.
I can not see that the fact that the attorney of the executors did not insist, before the referee, on the trial, or the clerk on the adjustment of costs, or before the court on the motion for an extra allowance, that the plaintiff could not recover costs, without a special application to the court, can, or ought to estop the executors from insisting upon their protection from costs under the statute. I can see no way to *439affirm, the orders appealed from, without disregarding the statute.
[New York General Term, September 19, 1865.I think both orders should be reversed, and the costs stricken from the judgment.
Orders affirmed.
Ingrahmn, Leonard and Sutherland, Justices.]