Fort v. Gooding
New York Supreme Court
The motion to set aside the report of the referee, in this ca.se, having been denied, as reported, ante, page 377, the plaintiffs, upon affidavits and the pleadings and other papers, applied to the court at special term, for costs against the defendants, to he paid out of the estate of the testator, under 2 E. S. 90, § 51; and also for an extra allowance under section 308 of the code of procedure.
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The motion to set aside the report of the referee, in this ca.se, having been denied, as reported, ante, page 377, the plaintiffs, upon affidavits and the pleadings and other papers, applied to the court at special term, for costs against the defendants, to he paid out of the estate of the testator, under 2 E. S. 90, § 51; and also for an extra allowance under section 308 of the code of procedure. The plaintiff, in his affidavit, swore that he and his wife endeavored to have the claim allowed and paid without suit, and offered, after the death of the testator, to take an amount $200 less than…
1Opinion of the Court
By the Court, Willard, J.
As the defendants did not give notice to the creditors of the testator, to exhibit their claims with the.vouchers thereof, as they were permitted to do by the 34th section of the act, (2 R. S. 88,) no laches. is' imputable to the plaintiffs for not presenting théir account at an earlier day. The case of Harvey v. Skillman, (22 Wend. 571,) which held that the omission of executors to publish such notice; subjected them to costs, has .been in that respect overruled in Bullock v. Bogardus, (1 Denio, 276,) and in Russell v. Lane, (1 Barb. S. C. Rep. 523.) There are but…
2Cases cited4 opinions
- Bullock v. BogardusCourt for the Trial of Impeachments and Correction of Errors · 1845
- Harvey v. Skillman'sNew York Supreme Court · 1840
- Nicholson v. ShowermanNew York Supreme Court · 1831
- Russell v. LaneNew York Supreme Court · 1847
3Cited by6 opinions
- Fox v. FoxNew York Supreme Court · 1860
- Adler v. DavisNew York Supreme Court · 1900
- Colligan v. City of New YorkNew York Supreme Court · 1914
- Pursell v. FryNew York Supreme Court · 1880
- Smith v. RandallNew York Supreme Court · 1872
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