Theriot v. Prince
New York Supreme Court
This action, which was in trover, was commenced in 1844 by the testator—was tried in his lifetime, and verdict for $900 in his favor. After his death, and in January, 1847, the suit was revived in the names of the plaintiffs. In October, 1847, the court set aside the verdict, and ordered a new trial. In 1851, it was referred ; and in March, 1852, the referee reported in favor of the defendant.
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This action, which was in trover, was commenced in 1844 by the testator—was tried in his lifetime, and verdict for $900 in his favor. After his death, and in January, 1847, the suit was revived in the names of the plaintiffs. In October, 1847, the court set aside the verdict, and ordered a new trial. In 1851, it was referred ; and in March, 1852, the referee reported in favor of the defendant. The defendant now moves for costs against the plaintiffs personally, and for an extra allowance.
1Opinion of the Court
Cowles, Justice.
There is nothing which would justify the court, had it the power, in this case, in requiring the defendant’s costs to be paid by the plaintiffs personally.
They proceeded, and evidently in good faith, with a suit in which the testator had recovered a verdict in his lifetime. They could have hardly justified themselves had they done less.
The plaintiffs not being personally liable, can costs be allowed, payable out of the testator’s estate!
The defendant claims them under the § 317 of the Code, But that section is modified by § 8, which provides that Part *452II. of the Code relates…
2Cited by2 opinions
- In re MaceNew York Surrogate's Court · 1880
- In re SextonNew York Surrogate's Court · 1882