The opinion
Talcott, P. J.:
This is an appeal from an order made at the Erie Special Term, denying a motion to set aside and vacate a judgment and execution in this action.
The plaintiff commenced the action as executor of the last will and testament of John E. Willis, deceased, and the action appears • by the complaint, to have been founded upon a promise made after the decease of the testator. The cause went to trial, and the . jury found a verdict for the defendant. After the verdict, the .attorneys for the defendant went on and entered a judgment, in favor of the defendant for the defendant's costs $114.99, which judg *309 ment was entered against the plaintiff in the ordinary form, taking no notice of the representative character in -which the plaintiff had sought to maintain the action, and issued execution against the plaintiff de bonis propriis.
The plaintiff’s attorney made a motion to set aside and vacate the said judgment and execution, because the same was entered without an order .of the court charging the plaintiff personally with the costs. As we understand the rule now settled, after much diversity of opinion, it is as follows : “ Where it appears by the record that the cause of action, if any, arose after the death of the testator, such right of action rests in the executor in his private right, and he cannot in such case escape the penalty of costs by suing in form in his representative capacity. If he fails to obtain judgment In such case, no motion is necessary to charge such plaintiff with costs. Judgment therefore may be entered, of course, as in ordinary case, upon the clerk’s taxation.” (Holdridge v. Scott, 1 Lansing, 303; Smith v. Patten, 9 Abb. Pr. [N. S.], 205.)
The order of the Special Term appealed from is affirmed, with ten dollars costs and disbursements.
PresenN-TALcoTT, P. J., Smith and Hardin, JJ.
Order appealed from affirmed, with costs and disbursements.