Dean v. Roseboom
New York Supreme Court
Appeal from an order of tbe Jefferson county Special Term denying a motion to charge tbe plaintiff personally with tbe costs of this action. The plaintiff and the defendant were named as executors in th& last will of Susan Roseboom, deceased, and both appeared at the probate thereof before the surrogate. The plaintiff took out letters; the defendant declined to qualify.
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Appeal from an order of tbe Jefferson county Special Term denying a motion to charge tbe plaintiff personally with tbe costs of this action. The plaintiff and the defendant were named as executors in th& last will of Susan Roseboom, deceased, and both appeared at the probate thereof before the surrogate. The plaintiff took out letters; the defendant declined to qualify. The defendant hadinhis possession all the personal property of the testatrix, except certain notes amounting to $400, described in the complaint, which he had executed to the deceased in her. lifetime and which had now fallen…
1Opinion of the Court
Haedin, P. J.:
Section 1814 cannot be applied in tbis action, as it was passed after tbis action was commenced and relates to actions commenced after tbe passage. Tbis action was commenced April 16,1879, and tbe section was not passed until May 6, 1880.
“When tbe action was brought the plaintiff was tbe sole executor who bad qualified to act as such. If tbe action had continued on that state of facts it might have been maintained. But, instead thereof, defendant, on tbe 1st of May, 1879, qualified and set up that fact as a defense, and by means of it obtained a holding at circuit and at General…
2Cases cited4 opinions
- The People v. . Fire Association of Phil'A.New York Court of Appeals · 1883
- Sanford v. . SanfordNew York Court of Appeals · 1871
- Smith v. LawrenceNew York Court of Chancery · 1844
- Whitney v. CoapmanNew York Supreme Court · 1862