Ehrenreich v. Lichtenberg

Appeal is taken from an order of the Special Term, awarding to the plaintiffs costs against executors.

We think that, without positive charge in the moving papers that the executors unreasonably neglected or resisted the claim, no costs should follow; for it does not necessarily result that, because a verdict was had by the plaintiffs, defendants unreasonably opposed their action.

Moreover it does not affirmatively appear from the moving papers that the defendants did not file the consent provided for by section 1822 of the Code.

*790To obtain the exemption provided by the statute, the hearing and determination of the claim is upon settlement of the executors’ account, not to refer the controversy; and there is yet time for the appellants to avail themselves of the statutory permission, §§ 1822, 1836, 2743.

Order appealed from reversed, with costs.

Sohuchmah, J., concurs.

Order reversed, with costs.