Behrle v. Sherman
The Superior Court of New York City
Oh the trial of this cause, which was had on the 16th of October, 1862, before Chief Justice Bosworth and a Jury, the Court directed a verdict for the plaintiff, and that the questions of law, arising in the case, be heard in the first instance at General Term, and that the entry of judgment be suspended in the meantime.
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Oh the trial of this cause, which was had on the 16th of October, 1862, before Chief Justice Bosworth and a Jury, the Court directed a verdict for the plaintiff, and that the questions of law, arising in the case, be heard in the first instance at General Term, and that the entry of judgment be suspended in the meantime. The defendants in the action were Adeline C. Gunter, who was the administratrix of one Harmon H. Gunter, and Austin Sherman and John S. Savery, who were the sureties in the administration bond given by her on her appointment in Queens County. The action was brought upon the…
1Opinion of the Court
By the Court — Bosworth, Ch. J.
The complaint does not allege, nor was it proved that Feely, Mahoney or McLaughlin made “ application ” as a creditor of Harmon H. Gunter, for payment of the debts alleged to be due to them. (3 R. S., 5th ed., 204, § 18, sub. 1.)
It is only on such an application being made that the Surrogate can act under that section.
The complaint alleges that the “ administratrix was duly cited # * to show cause at the Surrogate’s office,” &c. This is denied by the answer, and no evidence of the fact was offered.
The complaint also alleges that, “ upon reading and filing proof…
2Cases cited11 opinions
- Supervisors of Onondaga v. BriggsNew York Supreme Court · 1846
- Corwin v. MerrittNew York Supreme Court · 1848
- Magee v. VedderNew York Supreme Court · 1849
- Wilson v. Baptist Education SocietyNew York Supreme Court · 1851
- Dakin v. HudsonNew York Supreme Court · 1826
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3Cited by1 opinion
- Hood v. . HoodNew York Court of Appeals · 1881