Winne v. Van Schaick
New York Supreme Court
The defendant, sued as an administrator, suffered a default, and the plaintiff taxed costs against him without obtaining an order of the court, entered judgment and issued an execution, without previous leave from the surrogate, and before the settlement of the defendant’s accounts as administrator. The defendant moved to set aside the judgment and execution. The plaintiff read an affidavit for the purpose of shewing unreasonable delay in payment.
1Opinion of the Court
By the Court,
Nelson, J.
Executors and administrators are not liable to costs, unless-it appear that the demand of the plaintiff has been unwarrantably resisted or neglected, or that the executor or administrator has refused to submit the matter to referee's, 2 R. S. 90, § 41; and such facts must be shewn to the court before judgment for costs be signed, 5 Wendell, 74, and will not be listened to in opposition to a motion to set aside a judgment entered without leave, as the defendant has the right to be heard on such question. Had the judgment been duly entered, the execution issued…
2Cases cited1 opinion
- Potter v. EtzNew York Supreme Court · 1830
3Cited by10 opinions
- Schmitz v. . LanghaarNew York Court of Appeals · 1882
- Butler v. Hempstead's AdministratorsNew York Supreme Court · 1837
- Harvey v. Skillman'sNew York Supreme Court · 1840
- Comstock v. OlmsteadNew York Supreme Court · 1851
- Parker's Executors v. Gainer's AdministratorNew York Supreme Court · 1837
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