Evans v. Pierson

New York Supreme Court

Evans v. Pierson

1 Wend. 30

DecidedMay 15, 1828

StatusPublished

This text of 1 Wend. 30 (Evans v. Pierson) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Evans v. Pierson, 1 Wend. 30 (N.Y. Super. Ct. 1828).

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Opinion

By the Court,

Sutherland, J.

An executor or administrator is liable personally for costs, only when he pleads a false plea; that is, sets up new matter in avoidance of the action and fails in supporting if, or subjects a plaintiff to an expense additional to what otherwise would be necessary to show his right of recovery. The plea of the general issue cannot be considered a false plea. The defendants here pleaded plene administravit; and though the plaintiff took judgment for assets quando acciderint, he was yet under the necessity of proving the amount of his demand. He, therefore, has no reason to complain of the plea of non-assumpsit having been interposed. The rule is settled, that though the jury find against the pleas of non-assumpsit and non-assumpsit infra sex annos, such pleas are not to be considered technically false pleas, so as to subject an executor or administrator personally to costs. (Osterhout v. Hardenburgh, 19 Johns. R. 266. See also Ford v. Crane, 6 Cowen, 71.)

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By the Court,

Sutherland, J.

An executor or administrator is liable personally for costs, only when he pleads a false plea; that is, sets up new matter in avoidance of the action and fails in supporting if, or subjects a plaintiff to an expense additional to what otherwise would be necessary to show his right of recovery. The plea of the general issue cannot be considered a false plea. The defendants here pleaded plene administravit; and though the plaintiff took judgment for assets quando acciderint, he was yet under the necessity of proving the amount of his demand. He, therefore, has no reason to complain of the plea of non-assumpsit having been interposed. The rule is settled, that though the jury find against the pleas of non-assumpsit and non-assumpsit infra sex annos, such pleas are not to be considered technically false pleas, so as to subject an executor or administrator personally to costs. (Osterhout v. Hardenburgh, 19 Johns. R. 266. See also Ford v. Crane, 6 Cowen, 71.)

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Bluebook (online)

1 Wend. 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-pierson-nysupct-1828.