Legal Opinion · Dissent

Cotes v. Carroll

New York Supreme Court

Decided January 15, 1865Published

This action was commenced by the plaintiffs, two of the executors of Benjamin Rathbun, to obtain a judicial construction of his will. The defendants Laura Carroll, Jane M. Rathbun and George L. Rathbun (only children of Charles Rathbun, a son of deceased), appeared by Countryman & Moak, and the defendants Andrew R. Smith, Minerva E. Wood, Calvin P. Smith and Louisa Rathbun, by D. C. Bates, Esq.

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This action was commenced by the plaintiffs, two of the executors of Benjamin Rathbun, to obtain a judicial construction of his will. The defendants Laura Carroll, Jane M. Rathbun and George L. Rathbun (only children of Charles Rathbun, a son of deceased), appeared by Countryman & Moak, and the defendants Andrew R. Smith, Minerva E. Wood, Calvin P. Smith and Louisa Rathbun, by D. C. Bates, Esq. The case was tried at the Otsego special term, in July, 1861. The principal questions litigated were: 1st. Whether the defendant George L. Rathbun, under the second and third clauses of the will, on…

1Dissent

Balcom, J., dissenting (in part).

According to section 327 of the Code, “ an appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom" the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof.” And the main question now presented is whether the three defendants, who have not appealed from the judgment, are to be deemed adverse parties, so as to entitle them to notice of the appeql. Their interests in the case are certainly adverse to those of the appellants. They are as much interested in…

2Cases cited2 opinions

  1. Thompson v. EllsworthNew York Court of Chancery · 1846
  2. Hawkins v. Dutchess & Orange Steamboat Co.New York Supreme Court · 1827

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