[After stating the facts as above.]—The complaint avers the action to be prosecuted by the plaintiff as executrix and individually, and on behalf of the persons interested or claiming to be interested in the estate. Actions brought in a representative capacity mean those maintainable only in that character. The plaintiff sued both as executrix and individually, and the action might have been prosecuted in her own name. For this reason she should not have been relieved from the payment of costs (Burhans v. Blanchard, 1 Denio 626, and cases there cited).
In actions brought by or against an executor 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 (Code Civ. Pro. § 3246). The exception arising from the sections named applies only to actions brought against the- executor, and is inapplicable here (Fox v. Fox, 22 How. *115Pr. 453), In my opinion the learned justice in the court below erred in ordering the action discontinued without costs. The denial of the defendants’ application for an extra allowance was within the discretion of the court, and there is no reason for interfering with the result of its exercise.
The part of the order discontinuing the action without costs should be reversed, and the part denying the defendants’ application for an extra allowance affirmed, without costs to either party on this appeal,
J. F, Daly and Yak Hoesek, JJ., concurred.
Order accordingly.