Hunt v. Kearney

3 N.J.L. 721

Opinion

Pennington, J. — The

action below was brought by James

Kearney, styling himself acting executor of Eavaud Kearney, deceased, for arrearages of rent. On the first appearance of the parties, the defendant objected to the authority of the plaintiff; that three other persons were executors of Eavaud Kearney. The justice overruled this objection, and proceeded to try the cause. The justice ought not to have overruled this matter; the objection was taken in time. The plaintiff ought to have made out his authority. The very style of action shows that if the plaintiff below was executor at all, that he was not sole executor, by styling himself acting executor. If others were executors with him, they ought to have been made plaintiffs. I am of opinion, that the judgment be reversed.

Kirkpatrick, C. J., and Rossell, J. — Of the same opinion.

Judgment reversed.

Cited in Cole, Ex. v. Smalley, 1 Dutch. 374.