Fox v. Fox
New York Supreme Court
Statement of facts by defendant: The first cause was founded upon a note of $500, found by the executor among the assets of the testator.
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Statement of facts by defendant: The first cause was founded upon a note of $500, found by the executor among the assets of the testator. The note was for money the testator let the defendant have on his going west in April, 1856, and as the proof on the trial tended to show, was intended as a gift, or an outfit for the defendant, by his father, the testator; that there was no proof to the contrary except what appeared on the face of the note ; that plaintiff brought the suit at the instance and request of the widow, who was made by the will (as has been adjudged by this court, in a suit by…
1Opinion of the Court
Potter, Justice.
Whatever I might feel disposed to do in these cases, had I the right to the exercise of a discretion, I have not the power, as I understand it, to grant these motions. The Revised Statutes (2 R. S., 90, § 41,) remains in full force and unrepealed.
It is doubtless the phraseology of the 317th section of the Code that has misled the defendant in his view of his rights. While it seems to give costs, in general, the second branch of the section re-enacts and continues in force the old provision of the statutes above cited.
This statute (§ 41) provides but two cases in which…
2Cases cited4 opinions
- Carroll v. Lessee of CarrollSupreme Court of the United States · 1854
- People ex rel. Bailey v. Judges of the Albany Mayor's CourtNew York Supreme Court · 1833
- Fort v. GoodingNew York Supreme Court · 1850
- Cole v. JessupNew York Supreme Court · 1850
3Cited by4 opinions
- Howe v. LloydNew York Supreme Court · 1870
- Addamo v. ScaturroCivil Court of the City of New York · 1963
- In re MillerNew York Surrogate's Court · 1880
- Hood v. HoodNew York Court of Common Pleas · 1883