Fry v. Evans
New York Supreme Court
Error from Orange common pleas. The defendant in error, M. Evans, as administratrix of T. G. Evans, deceased, sued Fry in a justice’s court, and demanded in her declaration $25, the amount of an execution in favor of the intestate, against one Lusk,received by Fry since the death of the intestate, and also $9,62, the price of a cistern purchased by Fry also since the decease of the intestate.
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Error from Orange common pleas. The defendant in error, M. Evans, as administratrix of T. G. Evans, deceased, sued Fry in a justice’s court, and demanded in her declaration $25, the amount of an execution in favor of the intestate, against one Lusk,received by Fry since the death of the intestate, and also $9,62, the price of a cistern purchased by Fry also since the decease of the intestate. Fry pleaded the general issue, and gave notice of set-off, goods, &c. sold to the intestate in his life-time. The cause was tried and testimony adduced on both sides; the administratix proved the receipt…
1Opinion of the Court
By the Court, Nelson, J.
There can be no doubt the off-set was properly excluded. The plaintiff in both counts declared for a cause of action which arose after the death of the intestate, and in such cases it is well settled that the defendant cannot set-off a demand against the intestate, on the ground that it would change the course of distribution. This is the English doctrine which we have adopted; our statute of set-off being substantially like that of England. Dale v. Cook, 4 Johns. Ch. R. 13. Root v. Taylor, 20 Johns. R. 137, and the cases there cited. Under the old law, by allowing an…
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