McElwain v. Corning

12 Abb. Pr. 16

Opinion

By the Coukt.

Footnotes

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*—Hogeboom, J.

—There would be a serious difficulty in reviewing the order of the special term, if the discretion of the court below had been exercised in granting it; but it is obvious from the opinion pronounced at special term, that the judge rested his decision entirely on the want of power to grant the order, and not at all on the question of discretion. I regard it, therefore, as open to examination upon appeal.†

And I think the court below had power to grant the order applied for, and should have done so upon terms. The plaintiff’s claim, which was prosecuted, was against the estate of Cook; he designed to prosecute that claim, and gave instructions to his attorneys to that effect; he sued the right individuals, but by mistake named them to his attorneys as representing the estate of Huntington, instead of Cook. It is, I think, a mere misdescription of the persons in their representative character, and one not so unlikely to have been made as to be altogether inexcusable. The defendants whom he intended to prosecute, were, in fact, personally served with the process for the commencement of the' action, but under a wrong designation. The claim of the plaintiff should not be defeated by such a mere mistake or inadvertence. It is, therefore, a case entitling the plaintiff to relief on terms.

There has been extraordinary delay in preparing and serving a complaint, but that furnishes no fatal objection to granting the relief sought, inasmuch as the defendants might, if they had chosen, have expedited the plaintiff’s proceedings or dismissed "the action.

The defendants, however, state that supposing the action barred by the lapse of six months after the rejection of the claim, they acted upon such belief, and have paid over almost the whole estate to those entitled to the same, and have not enough of the estate remaining in their hands to pay one-third of the amount claimed by the plaintiff on the claim made against the estate. They must therefore be protected, and not allowed, to "be damnified on account of any moneys paid over by them since the lapse of six-months after the rejection of the plaintiff’s claim.

The order of the special term should be reversed, and the plaintiff allowed to amend in the manner proposed, upon payment of $10 costs of opposing the motion at the special term ; upon payment of $10 costs to the defendants in the action erroneously commenced; and upon stipulating that in the event the plaintiff succeeds in the action, he will not seek to collect by execution against the defendants, or to obtain the order of the surrogate to do so, any larger amount of the assets of the estate than shall appear to have been in the defendants’ hands as administrators at the time of the service of the papers for the motion at special term, unless the surrogate to whom the application is made for the order to issue execution, shall be satisfied that any portion of the assets of the estate shall have been paid out by the defendants before the lapse of six months subsequent to the rejection of the plaintiff’s claim, or that they were in bad faith paid out afterwards, before the service of the papers for said motion. Such payment of costs and service of stipulation to be made within twenty days after service of this order. Such stipulation, and this order, to be without prejudice to any remedy to which the plaintiff may be entitled against the next of kin or legatees for any moneys or assets paid over to them, and said stipulation and order may each contain a clause to that effect. Neither party is to have costs on this appeal.

Present, Gould, Hogeboom, and Peokham, JJ.

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To the same effect is Beach a. Chamberlain, 3 Wend., 366.