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Varick v. Bodine

3 Hill & Den. 444 Court N.Y. Sup. Ct. English

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p. 444
Varick, executrix &c. vs. Bodine and others.

Headnote

The fact that one suing as executor is not such, may be pleaded in bdr.
Whore oyer is duly demanded by a defendant before the time for pleading has expired, if the plaintiff afterwards, and without complying with the demand, enter the defendant’s default for want of a plea, the proceeding will be set aside as irregular.
An executor or administrator whose proceedings are set aside on motion as irregular, will be ordered to pay the costs of the motion.
F. Kinney, for the defendants,
moved to set aside the default and subsequent proceedings on the part of the plaintiff for irregularity. The plaintiff declared on the 9th of Mayj making proferí of the letters testamentary and of the deed on which the action was founded. On the 26th of May the time to plead was extended thirty days. On the 23d of June the defendant demanded oyer of the deed and of the letters testamentary. On the 2d of July the plaintiff served oyer of the deed, but not of the letters testamentary, and on the 18th of July the defendants’ default for want of a plea was entered. The defendants insisted that the default was irregular, because no oyer of the' letters testamentary had been served.
W. Hall, for the plaintiff,
said, the defendants could only question the plaintiff’s right to sue as executrix by a plea in abatement; and as the ten days allowed by the practice fdr pleading in abatement had gone by before the demand of oyer, the defendants were not entitled to a copy of the letters testamentary.

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.

p. 445
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.

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