Tindal v. Jones
New York Supreme Court
Appeal from an order denying motion to set aside judgment. The action was originally commenced against the defendant intestate to recover an indebtedness on contract. After issue joined, the original defendant died, and the present defendant was appointed his administratrix. Plaintiff, instead of presenting his claim to the administratrix, applied for and obtained leave to continue the action against her by supplemental complaint. He proceeded therein to judgment.
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Appeal from an order denying motion to set aside judgment. The action was originally commenced against the defendant intestate to recover an indebtedness on contract. After issue joined, the original defendant died, and the present defendant was appointed his administratrix. Plaintiff, instead of presenting his claim to the administratrix, applied for and obtained leave to continue the action against her by supplemental complaint. He proceeded therein to judgment. On entering judgment, the clerk, against defendant’s objection, allowed him costs, and taxed the same. At special term defendant’s…
1Opinion of the Court
By the Court.*—Emott, J.
There have been various and contradictory decisions upon the question presented by this appeal. In McCann a. Bradley (15 How. Pr., 79), the general *259term in the first district held that an action commenced against a defendant in his lifetime, and revived against his personal representatives after his death, was within section 41, of title 3, chapter 6, part 2 of the Revised Statutes (2 Rev. Stat., 90, § 41); and costs could not be recovered unless the claim had been presented to the personal representatives, or a reference refused, which is in effect to say that in such…
2Cases cited5 opinions
- Gormly v. McIntoshNew York Supreme Court · 1856
- Benedict v. CaffeThe Superior Court of New York City · 1854
- Lemen v. WoodNew York Supreme Court · 1858
- McCann v. BradleyNew York Supreme Court · 1855
- Enos v. Thomas & HunterNew York Court of Appeals · 1851
3Cited by2 opinions
- Martine's EstateNew York Surrogate's Court · 1882
- Greene v. DayNew York Surrogate's Court · 1882