Varick v. Bodine

3 Hill & Den. 444

Opinion

By the Court, Bronson, J.

It is settled that the defendant may plead in bar that the plaintiff is not executor. (Thomas. v. Cameron, 16 Wend. 579.) After a regular demand of oyer the declaration is not complete until the oyer has been furnished. The demand was made before the time for pleading had expired, and the default was therefore irregular.

Although costs are not in general allowed against an executor or administrator, there is no reason why he should not pay costs where his proceedings are set aside for irregularity. It has been held that an executor plaintiff must pay costs on a judgment of non pros. (Rudd v. Long, 4 John. R. 190.) So on a judgment as in case of nonsuit; (Brown v. Lambert, 16 John. R. 148 ;) and for a default in not proceeding to trial pursuant to notice without a sufficient excuse. (How v. Taylor, 1 Wend. 34.) The motion.must be granted with costs.

Ordered accordingly.