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Evans v. Pierson

1 Wend. 30 Court N.Y. Sup. Ct. English

Delivered by Sutherland, J.

Contents

Majority

p. 30
Evans and Evans, administrator and administratrix, &c. ads. Pierson.

Headnote

The plea of npn-assumpsit sumpsit infra, &c. plead by administrafound agaiifst them, are not as win subject phersmraílyanto costs.
Case submitted upon a question of costs. Action as-sumps¡t on a promissory note made by the intestate. The declaration contained also a count cromprising the common . money counts against the intestate, and an insimul computassent aga™st l^ie administrators. The defendants plead, h Mon-assumpsit by intestate ; 2. Mon-assumpsit by defend-an*-s j 3 Mon-assumpsit infra, &c. ; 4. Plene administravil; an<^ outstanding bond. The plaintiff, by his replica-
p. 31
lion, took issue upon the third plea, confessed the fourth and fifth pleas, and prayed judgment of assets guando acciderint,, On the trial, a verdict was found for the plaintiff on the issues joined, and his damages assessed. The question submitted is, are the administrators personally liable for costs 1
L. Beardsley, for defendants.
Palmer ty Goodrich, for plaintiff.

By the Court,

An executor or administrator is liable personally for costs, only when he pleads a false plea; that is, sets up new matter in avoidance of the action and fails in supporting if, or subjects a plaintiff to an expense additional to what otherwise would be necessary to show his right of recovery. The plea of the general issue cannot be considered a false plea. The defendants here pleaded plene administravit; and though the plaintiff took judgment for assets quando acciderint, he was yet under the necessity of proving the amount of his demand. He, therefore, has no reason to complain of the plea of non-assumpsit having been interposed. The rule is settled, that though the jury find against the pleas of non-assumpsit and non-assumpsit infra sex annos, such pleas are not to be considered technically false pleas, so as to subject an executor or administrator personally to costs. (Osterhout v. Hardenburgh, 19 Johns. R. 266. See also Ford v. Crane, 6 Cowen, 71.)