Fowler v. Starr — 3 Denio 164

Majority

p. 164

Fowler and others, administrators of Hotchstrasser, vs. Starr.

Headnote

Executors and administrators.necessarily prosecuting m the right of their testator oz intestate, will be permitted to discontinue without costs, upon ascertaining that a defence exists, where they are not chargeable with wantonness or bad faith in bringing or conducting the suit.

So held where the defendant pleaded a discharge under the bankrupt act, granted in the lifetime of the intestate, of which the plaintiffs weie not aware until it was pleaded.

Motion by plaintiffs for leave to discontinue without costs. The action was for the balance of an account for goods sold by the intestate, who died in April, 1845; and the suit was commenced in February, 1846. On the 17th of that month the defendant’s attorney served a copy of a plea setting up a discharge under the bankrupt act, granted in November, 1843. The acting administrator, who had the sole charge of the business of the estate, swore that he bad never heard of the discharge until the plea was served.

J. Edwards, for the plaintiffs.

N. Hill, Jr. for the defendant.

The plaintiffs may discontinue without paying costs to the defendant. They necessarily prosecuted as administrators in the right of their intestate, and there is no reason to believe that the action was brought wantonly, or that it was either commenced or conducted in bad faith. (2 R. S. 615, § 16,17.)

Motion granted.