Howe v. Lloyd
New York Supreme Court
Appeal from an order. This action was brought by Eliza Howe, plaintiff and appellant, against Margaret Lloyd, executrix of Alexander 0. Lloyd, defendant and respondent. It now came before the court on an appeal from an order made at special term by Mr. Justice Hogkeboom, setting aside a judgment in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents damages, and one hundred and fifty dollars and sixty-nine cents costs.
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Appeal from an order. This action was brought by Eliza Howe, plaintiff and appellant, against Margaret Lloyd, executrix of Alexander 0. Lloyd, defendant and respondent. It now came before the court on an appeal from an order made at special term by Mr. Justice Hogkeboom, setting aside a judgment in favor of plaintiff for five hundred and twenty-four dollars and ninety-seven cents damages, and one hundred and fifty dollars and sixty-nine cents costs. The order sets aside the judgment absolutely, damages as well as costs, although plaintiff’s counsel insisted specially, the judgment was, in any…
1Opinion of the Court
By the Court.* — Miller, J.
The plaintiff in this action claims that costs are recoverable as a matter of course against an executor or administrator, to be levied of the assets of the deceased. I think that this position cannot be maintained.
The Code, section 317, declares that in an action prosecuted or defended by an executor or administrator, “ &c.,” costs shall be recovered as in an action by and against a person prosecuting in his own right. “But this section shall not be construed to allow costs against executors and administrators where they are now exempted therefrom by section…
2Cases cited6 opinions
- Vail v. RemsenNew York Court of Chancery · 1838
- Mayor of New York v. LyonsNew York Court of Common Pleas · 1863
- Fox v. FoxNew York Supreme Court · 1860
- Clumpha v. WhitingNew York Supreme Court · 1860
- Woodruff v. CookNew York Supreme Court · 1857
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Hallock v. BaconNew York Supreme Court · 1892
- Dryer v. BrownNew York Supreme Court · 1890
- Smith v. RandallNew York Supreme Court · 1872