Schenck v. Rickaby
New York Supreme Court
At chambers. This action was brought by Rebecca J. Schenck against Hamilton Rickaby, executor, etc., of Sarah B. Philips, deceased, for services rendered deceased. The complaint alleged that plaintiff had duly sei-ved a verified claim on the executor. Defendant now moves that this allegation be stricken out.
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At chambers. This action was brought by Rebecca J. Schenck against Hamilton Rickaby, executor, etc., of Sarah B. Philips, deceased, for services rendered deceased. The complaint alleged that plaintiff had duly sei-ved a verified claim on the executor. Defendant now moves that this allegation be stricken out. Code Civil Proc. 2ST.Y. §§ 1835, 1836, provides as follows: “Sec. 1835. Where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed…
1Opinion of the CourtAndrews, J.
The question whether costs shall be awarded against an executor or administrator, pursuant to sections 1835 and 1836 of the Code, is to be determined by the court, and there are several provisions of section 1836 which imply that evidence tending to show' whether the case is one which is covered by these sections is to be received on the trial, not to aid the jury in finding a verdict, but to enable the court to decide w'hether costs shall be awarded against the defendant. Said section declares that, where certain things appear, the court may award costs against an executor or administrator,…
2Cited by1 opinion
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