Hood v. Hood
New York Court of Common Pleas
Appeal from an order of this court discontinuing an action without costs. The facts are stated in the opinion. This action was brought under authority of an order granted by the Surrogate of Westchester county, giving the plaintiff as executrix of the last will and testament of Andrew Hood, deceased, leave to maintain an action on her own behalf and on behalf of all other persons interested or claiming to be interested in the estate, upon the bond given by Frederick Hood, a…
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Appeal from an order of this court discontinuing an action without costs. The facts are stated in the opinion. This action was brought under authority of an order granted by the Surrogate of Westchester county, giving the plaintiff as executrix of the last will and testament of Andrew Hood, deceased, leave to maintain an action on her own behalf and on behalf of all other persons interested or claiming to be interested in the estate, upon the bond given by Frederick Hood, a non-resident executor named in said last will and testament. The letters testamentary issued to Frederick Hood had been…
1Opinion of the CourtBeach, J.
[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…
2Cases cited2 opinions
- Burhans v. BlanchardCourt for the Trial of Impeachments and Correction of Errors · 1845
- Fox v. FoxNew York Supreme Court · 1860