Lanning v. Swarts

9 How. Pr. 434

• Court: New York Supreme Court
• Decided: April 15, 1854
• Status: Published

Opinion

Welles, Justice.

The plaintiff is entitled to recover judgment for costs against the defendants, to be collected from the estate of the intestate. (2 R. S. 90, § 41; Bullock agt. Bogardus, 1 Denio, 276, and note a, at the end of the case; Hartshorn agt. King, id. 674; Code, § 304, subd. 3, and § 317.)

As to the objections of the defendants’ counsel: 1. The law does not require the offer to refer to be in writing. The practice has been.both ways, and I have never before heard it objected that an offer by parol was not good. 2. The account presented to the administrators was substantially like the one contained in the bill of particulars. The only variance is in the charge for interest, which can not be regarded, in respect of the present question, as a part of the account. • In the account presented, the charge for interest is put down at $5.25, and in the bill of particulars, interest on .the same account is charged at $8.50. If the plaintiff was entitled to interest at all, it was a mere incident or legal result. The case is plainly distinguishable in this respect from those cited by defendants’ counsel.