In re Borsdorff
New York Supreme Court
Appeal from, an order denying leave to file and serve a supplemental complaint. The respondent was the executor of Charles W. Dayton, now deceased. Charles E. Borsdorff and Hermann Winter, appellants, obtained a judgment in this court on February 9,1861, against Charles W. Dayton, then deceased. Such judgment was vacated February 16, 1863, upon the application of the executor. The motion is reported, sub nom. Borsdorff a. Dayton, Ante, 36, note.
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Appeal from, an order denying leave to file and serve a supplemental complaint. The respondent was the executor of Charles W. Dayton, now deceased. Charles E. Borsdorff and Hermann Winter, appellants, obtained a judgment in this court on February 9,1861, against Charles W. Dayton, then deceased. Such judgment was vacated February 16, 1863, upon the application of the executor. The motion is reported, sub nom. Borsdorff a. Dayton, Ante, 36, note. Plaintiff’s attorney after-wards procured an order, directed to the executor, to show cause in April, 1863, why an order should not be entered,…
1Opinion of the CourtBarnard, J.
The notice of motion in this case is for an order giving leave to plaintiff to continue the action against the executor of the deceased defendant, by filing a supplemental complaint. The motion was not made till after the expiration of a year subsequent to the death, and was denied at special term.
From the notice, it is evident that the motion was, in effect, a motion to be allowed to continue the action. Such a motion cannot be entertained after the expiration of a year from the death. (Code, § 121.)
It is claimed, however, that, in this case, the fact of judgment having been entered against…
2Cases cited2 opinions
- Pendleton v. FayNew York Court of Chancery · 1831
- Greene v. BatesNew York Supreme Court · 1852
3Cited by1 opinion
- Stewart v. PowersThe Superior Court of New York City · 1874