Mitchell v. Mount
New York Court of Common Pleas
Motion for an allowance. This action was brought by John Mitchell and another, assignees, against William B. Moffat, in his lifetime, to recover the amount of a demand for labor and materials in repairing defendant’s buildings.
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Motion for an allowance. This action was brought by John Mitchell and another, assignees, against William B. Moffat, in his lifetime, to recover the amount of a demand for labor and materials in repairing defendant’s buildings. The defendant interposed an answer: after his death the suit was revived by his executor, Bichard E. Mount, Jr. The cause was tried before a referee, who reported in favor of plaintiffs for $1,020.84. The plaintiffs claimed costs as of course, and now moved for an allowance. cited Lemen a. Wood (16 How. Pr., 285). insisted that the plaintiffs must move specially for…
1Opinion of the CourtBrady, J.
The case of Lemen a. Wood (16 How. Pr., 285), is decisive of the plaintiffs’ right to costs. The testator having interposed a sworn answer, which, if true, was a defence, it was not necessary for the plaintiffs to offer to refer the claim. An issue had already been formed. Whether this be correct or not as a legal proposition, there can be no doubt that all obligation to make such an offer is removed when the executor makes an application to revive the suit. That is a continuation of the testator’s will in reference to the claim, and expressive of a de*214sire that it should be litigated in the…
2Cases cited2 opinions
- Lemen v. WoodNew York Supreme Court · 1858
- McCann v. BradleyNew York Supreme Court · 1855