Thompson v. . Whitmarsh
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 23, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover the purchase-price of a certain personal property, which came into the hands of plaintiff as executrix of Charles Thompson, who died insolvent.
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Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 23, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought to recover the purchase-price of a certain personal property, which came into the hands of plaintiff as executrix of Charles Thompson, who died insolvent. Defendant set up as a counter-claim a promissory note, executed by the decedent to him. This was not allowed by the referee. This action cannot be maintained by plaintiff in her individual…
1Opinion of the CourtFinch, J.
It is not denied in this case that, irrespective of sections. 449 and 1814 of the Code, and before its enactment, an executor or administrator, seeking to enforce a contract made by himself and not by the decedent, could sue in his own name ; and that in such action a demand against the decedent belonging to the defendant could not be used as a counter-claim to diminish or extinguish the recovery. It is insisted, however, that the effect of these sections.is to change the law, and compel the executor or administrator to sue in his representative capacity where his recovery will be assets, and…
2Cited by34 opinions
- Ehrlich v. American Moninger Greenhouse Manufacturing Corp.New York Court of Appeals · 1970
- Moss v. . CohenNew York Court of Appeals · 1899
- Banco Nacional De Cuba v. Chase Manhattan BankDistrict Court, S.D. New York · 1980
- Parker v. . DayNew York Court of Appeals · 1898
- Steele v. LeopoldAppellate Division of the Supreme Court of the State of New York · 1909
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