Same v. Same

67 Barb. 495

• Court: New York Supreme Court
• Decided: December 7, 1874
• Status: Published

Opinion

Hardin, J.

In this second action, the plaintiff is entitled to recover the unpaid instalments.

Courts of equity have jurisdiction to give such relief, even against executors and trustees. (1 Story's Eq., § 593. 3 Barb. Ch., 466.)

The evidence showed some funds in the hands of the executors, and they should therefore pay the sum past due to the plaintiff.

But the plaintiff, before entering the judgment, should give the bond provided by the statute in such cases. The bond should be approved by a justice of this court, or a county judge, and filed, before the findings are signed and filed. There was no such bond tendered before suit brought, and therefore no costs will be recovered by the plaintiff, in this action.

[Onondaga Special Teem, December 7, 1874.

Judgment for the plaintiff.

Siwdm, Justice.]