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Action against executor - Complaint need not aver his appointment as

such Demurrer to complaint.

Where a complaint, in an action to foreclose a mortgage executed by the

defendant, as executor, alleges that he executed it as such executor: Held, that the complaint was sufficient, and that it was unnecessary to

allege the defendant's appointment as executor; he is presumed to be such as he has described himself.

Special Term, October, 1879.

S. B. M. Stokes, for demurrer.

Frederick de P. Foster, opposed.

VAN VORST, J. — This action is brought to foreclose a mortgage executed by the defendant Stephen B. M. Stokes, as executor of, and trustee under, the will of Elizabeth Borst, deceased, to the plaintiff. The defendant Stokes demurs to the complaint on the ground, as he claims, that it does not state a cause of action.

In support of the demurrer it is urged that the several facts tending to show the defendant to be an executor, including his appointment as such, and the name of the court from whence letters testamentary issued, and the county in which the same was located, are all material and traversable and should be alleged in the complaint and stated in an issuable form.

Kingsland agt. Stokes.

The complaint alleges that the defendant, as executor, &c., executed the mortgage. That is a sufficient statement.

Holliday agt. Fletcher (2 Ld. Raymond, 1510) is an express authority for the statement that suing one as administrator “did, of necessity, imply that administration was committed” to him. In a late case (Skelton agt. Scott, 18 Mun, 375) it is held that, in an action to foreclose a mortgage given by an executor, it is unnecessary to allege in the complaint his appointment as such.

The rule seems to be different where one sues as executor, in which case he must aver his appointment and title as such executor (Moak's Van Santvoord's Pleadings [3d ed.], 226). The cases cited by defendant's counsel are of that kind. But I should conclude that in declaring against one upon an instrument in which he was described as executor, and which he executed as such, for the purpose of pleading, he may be presumed to be such an one as he has described himself.

Had the obligation, for the enforcement of which the action is brought, been one entered into by the defendant's testator, the facts relative to the appointment of the executor and the issuing to him of letters testamentary would have been necessary.

The demurrer is not well taken and there must be judgment for the plaintiff thereon, with costs.

No appeal.

Board of Supervisors agt. Bristol.



H. BRISTOL and others.

Practice Appeals Costs Affirmance of judgment where both plaintiff

and defendants appeal proper entry in record who entitled to costs.

This action was commenced to recover of the defendant, Bristol, default

ing county treasurer, and his sureties, certain amounts of money alleged to have been misappropriated by Bristol. Such moneys belonged to sev. eral distinct funds, viz. : the county fund, the infant heir fund, the asylum fund and the military fund. Judgment was rendered by the referee for a certain amount of county funds and costs. Both plaintiff and the defendants (except Bristol) appealed. The general term affirmed the judgment. The memorandum or decision was, “ judgment affirmed, with costs.” The plaintiff thereupon entered judgment, having previously, on notice, taxed the costs of the appeal at $172.83, and

issued execution to collect the original judgment and costs of the appeal: Held (1st), that, as the plaintiff appealed from the entire judgment and

on this appeal the judgment appealed from was affirmed; not in part but in toto, the respondents were entitled to their costs by law as a mat

ter of right. (24). The defendants (except Bristol and Hathaway) also appealed in like

manner as did the plaintiff; that is from the entire judgment. On this appeal, too, the decision was, that the judgment should be affirmed, and it necessarily follows that the respondent, on this appeal, was entitled to costs. The court could not deprive the respondents on each separate appeal, of costs, because, they were awarded by law as a mat

ter of absolute right. The memorandum or order of the general term was “judgment affirmed,

with costs : " Held, that this memorandum should have been followed on the record, by

a judgment declaring the decision or adjudication suggested by it, fully,

as regards any, and all rights to which the parties were entitled under it. There could be, regularly, but one judgment, both appeals having been

heard together, and the judgment being one of simple affirmance whereby both were determined, that judgment should declare the affirmance, and should, in due form, award costs to the parties entitled to them by law, and against those who were by law bound to pay them. To this end there might be separate clauses in the entry of judgment.

Board of Supervisors agt. Bristol.

Where, as in this case, a set-off of costs would seem proper, a clause to

that end, following explanatory recitals, might be entered, if not without application to the court certainly on application at special term. It was within the just scope and power of the special term to correct and perfect the record as regarded the proper entry of judgment upon

the facts disclosed. The special term should have recognized the rights of the respondents on

each appeal to costs; and should have directed a set-off of the respond. ents' costs on the appeal taken by the plaintiff in reduction of the amount of the recovery against the former, and limited the recovery

and execution against them to the balance only. An entry of judgment is irregular, which awards costs of appeal against

a party who has not appealed. He is not chargeable with costs with his associate defendants, who, without him, took the appeal. The costs of the appeals are allowable against the appellants only, as to whom the judgment was affirmed.

Third Department, General Term, September, 1879.


THE plaintiffs sued Bristol, defaulting county treasurer, and his sureties to recover $5,194 county funds and $7,997 funds of infant heirs. Judgment was rendered by the referee for $6,130 county funds and costs. Both parties appealed. The defendants appealed “from the said judgment and every part thereof,” and excepted specifically to the finding of fact and conclusions of law upon which the referee based his judgment.

The general term affirmed the judgment, with costs.

The plaintiffs thereupon entered judgment, having previously, on notice, taxed the costs of the appeal at $172.83, and issued execution to collect the original judgment and costs of the appeal.

The plaintiffs never appealed from the judgment as directed by the referee, they sought, in the appellate court, to increase it by the items rejected by the referee.

The defendants moved to set aside the judgment and execution, and the special term, upon that motion, made the

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