Gardner v. Walker
New York Supreme Court
Motion by plaintiff to set aside judgment entered in favor of defendant William Walker for costs, or for re-adjustment of the costs, &c.
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Motion by plaintiff to set aside judgment entered in favor of defendant William Walker for costs, or for re-adjustment of the costs, &c. The leading facts, as established by the affidavits read on the motion, are as follows : The action was originally commenced on the 18tli day of April, 1849, by the plaintiff, against the defendant William Walker, and Charles Colt, Jr., to recover the value of certain personal property taken and sold by the deputy sheriff of Livingston county, on an execution issued upon a judgment recovered by said William Walker and Charles Colt, Jr. against Reuben…
1Opinion of the Court
Welles, Justice.
If the action had been tried before .the death of the defendant Colt, and a verdict had been found against him, and the defendant Walker had been acquitted, I think it clear that the latter would have been entitled ,to recover his full bill of costs against the plaintiff.
Upon the death of Colt the action survived against the defendant Walker, and it would have been regular for the plaintiff to proceed against Walker as surviving defendant, treating the action as having abated as against the defendant Colt. Whether an order of the court for permission so to proceed, would have…
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