Dunphy v. Callahan

Laughlin, J.:

This is an action by plaintiff, as executor, for the conversion of property of his testatrix. The property was not taken from the possession of the testatrix, but is alleged to have been taken and removed by the defendant immediately after her death. It is further alleged that defendant wrongfully refused to deliver the same to the plaintiff upon demand. The defendant denied the wrongful taking, and interposed a separate defense, alleging ownership in him. The cause was tried and the jury rendered a verdict in favor of the defendant. Upon this verdict defendant entered judgment on the merits in his favor against the plaintiff upon the issues in the action, and for the taxable costs, with a provision that they be recovered of the plaintiff personally, and that he have execution therefor. The record does not show that any application was made to the court pursuant to the provisions of section 3246 of the Code of Civil Procedure to have the costs taxed against the plaintiff personally, or that the court directed that they should be payable by the plaintiff personally. If the cause of action were one in favor of the testatrix, that is to say, if the conversion occurred during her lifetime, then it is clear that the action could only be maintained by the executor in his representative capacity, and in that event costs could not be taxed against him personally without the direction of the court, made pxxrsuant to the provisions of said section 3246 of the Code of Civil Procedure. (Hone v. De Peyster, 106 N. Y. 645.) The cause of action, according to the allegations of the complaint, however, did not accrue to the testatrix. The alleged wrongful taking and conversion of the property was after her death. The title of the executor to the personal property of the testatrix related back, by operation of law, upon his appointment, to the moment of her death. The conversion, therefore, was of property, the legal title to which was in the executor. The letters testamentary did not confer title upon him in his representative capacity, but are the evidence showing the passing of title from the testatrix to him. Although it has been held that an executor or administrator may recover either in his representative capacity or individually upon a cause of action upon a contract made by him in his representative capacity (Bingham v. Marine Nat. Bank, 112 N. Y. 661; Van Buren v. First Nat. Bank, 53 App. Div. 80, 83; Spies v. Michelsen, 2 id. 226), yet the rule seems to be well settled that as to a cause of action for conversion, and probably as to any other cause of action which accrues to the personal representative of the decedent, as distinguished from a cause of action which accrued to the decedent, whether he prosecute it in his name individually or in his representative capacity, is to be deemed, for the purpose of the taxation of costs, an action by him individually, and if the action be brought in his representative capacity, and he be unsuccessful, costs may be taxed against him individually, without an application to the court. (Buckland v. Gallup, 105 N. Y. 453; Bingham v. Marine Nat. Bank, supra; Mullen v. Guinn, 88 Hun, 128. See, also, Rooney v. Bodkin, 93 App. Div. 431, 435, and Williamson v. Stevens, 84 id. 519.)

It follows, therefore, that the motion was properly denied, and the order should be affirmed, with ten dollars costs and disbursements.

Clarke and Scott, JJ., concurred; McLaughlin, J., concurred in result; Ingraham, J., dissented.