In re the Application for a Writ of Mandamus to the Justices of the Superior Court of New York

Headnote

Executors must sue in their representative character, to exonerate them from the payment of costs, where defendant obtains judgment for costs. Merely describing themselves as executors at the commencement, and the declaration throughout showing that the cause of action accrued to themselves and not to the testator, is not sufficient.

Motion exparte for alternative mandamus.—This was a suit commenced in the superior court of the city of New York, by Edward Ferris and Adeline Pool, executor and executrix of the last will and testament of John Pool, deceased plaintiffs, against Robert Hogan, defendant. The declaration was in assumpsit in the ordinary form of money counts at

length, alleging the defendant to he indebted to the plaintiffs in the sum of five hundred dollars, &c. The plaintiffs were not described as executor and executrix only at the commencement of the declaration, and were there described as above mentioned. The defendant pleaded non- ■ assumpsit, with notice of set off. The cause was tried October 25, 1844, and a verdict rendered for plaintiffs for $2T25. On the 19th December following defendants’ attorneys made out the defendants’ costs and had them taxed, and requested plaintiffs’ attorney to insert a suggestion in the plaintiffs’ record of the amount of costs due defendant, which plaintiffs’ attorney declined doing. On the 27th May, 1845, defendant procured an order to show cause, from one of the judges of said court, why plaintiff should not amend his judgment record which was then entered in the cause, by inserting the amount of defendants’ costs, which were taxed at $69-37, or that the defendant be permitted to enter up his judgment for the costs, which motion was denied with seven dollars costs by the judge of said court who heard the application. Defendant’s attorneys showed that on the trial the plaintiffs’ claim was not reduced by set off.