Hees v. Nellis
New York Supreme Court
PPEAL from a judgment in favor of the plaintiff against the defendant as administrator of the estate of Jonah Nellis, deceased, and from an order made by the Special Term of Monroe county, denying a motion to set aside ijhe judgment in this action, because a judgment for costs had been entered up by the plaintiff, without having obtained an order allowing her costs, on a motion made for that purpose.
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PPEAL from a judgment in favor of the plaintiff against the defendant as administrator of the estate of Jonah Nellis, deceased, and from an order made by the Special Term of Monroe county, denying a motion to set aside ijhe judgment in this action, because a judgment for costs had been entered up by the plaintiff, without having obtained an order allowing her costs, on a motion made for that purpose. The action is on a bond given by the intestate to the heirs of John J. Lyke, conditioned for the payment of $400, on the death of their mother, “ to them, their heirs or their agents, or whoever…
1Opinion of the Court
By the Court, Mullin, P. J.
The bond is in form payable to the obligees jointly, but the interest is several, and hence one may sue alone. (1 Chitty on Pl. 11.)
The promise to pay the plaintiff her proportion may not be founded on a new consideration so as to enable her to sue and recover upon it instead of the bond, yet it may be taken into consideration in determining whether the plaintiff’s interest is jointly with the other heirs or separately to herself. Upon the case, as it appears before us, I think the plaintiff was entitled to sue alone. (Van Wart v. Price, 14 Abb. 4, note. Homer v.…
2Cases cited1 opinion
- Homer v. WhitmanMassachusetts Supreme Judicial Court · 1818
3Cited by1 opinion
- Mullen v. GuinnNew York Supreme Court · 1895