Majority
p. 589Shiels et al. v. Wortman et al. (Supreme Court, General Term, Second Department. July 2, 1891.) Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Headnote
Costs—Extra Allowance—Nonsuit.Beneficiaries under a will sued the widow and executor, alleging fraud and collusion on their part in obtaining property of the estate, and consented to a nonsuit, but subsequently had the default opened. After the case had been on the day calendar ready for trial for seven days, they again consented to a nonsuit; the reason assigned being that the executor had fully accounted before the surrogate. Held, that the defendants were entitled to an extra allowance.
Motions for reargumenb.
For former report, see 8 N. Y. Supp. 799 .
Johnston & Johnston, for appellants. William J. Gaynor, for respondents.
We see no reason bo change bhe opinion expressed upon the former argument of this appeal. 8 N. Y. Supp. 799 . Ib seems clear that the ordinary bill of costs does not compensate defendants for the expenses imposed upon them by the action. Nor do we And any reason why the plaintiffs should not be held to the ordinary liability of litigants. The order appealed from should be reversed, with $10 costs and disbursements, and the motion may be renewed at special term. All concur.