2 Barb. 373 | N.Y. Sup. Ct. | 1848
As this cause abated by the death of a sole plaintiff, before decree, the defendants could not revive the suit by bill of revivor. (9 Paige, 393. 2 Barb. Ch. Pr. 41.) Their only remedy is under the statute, (2 R. /S'. 185, §§ 118,119,) by petition to the court, for an order on the personal representatives of the deceased to show cause on a certain day to be named in the order, why the suit should not stand revived in their names, or the bill be dismissed, so far as the interests of such representatives are concerned. By the 119th section, the court is authorized, if no sufficient cause be shown to the contrary, to order the revival of the suit in their names, or the dismissal of the bill, with costs, or otherwise. In the present case, the personal representatives of the plaintiff show no reason why the suit should not be revived or dismissed ; nor why it should stand revived merely, and not be dismissed. They express no desire to prosecute it further; and indeed, concede that a further prosecution of it, by them, would not benefit the estate of their testator. Of course there is no reason why the other alternative asked by the defendants, should not be granted, and the bill be dismissed as far as the interests of the plaintiff’s personal representatives are concerned.
The other defendants are clearly entitled to costs, to be paid out of the assets of the plaintiff John H. Banta deceased, in the hands of his ekecutors. The executors have done no act to make themselves personally liable out of their own estate.
It has been insisted that costs of this application should not be allowed, because they are not asked for in the petition, nor in the order to shew cause. Costs are never given on a motion
The order therefore will be that the bill be dismissed so far as the interests of the executors of John H. Banta are concerned, with costs to all the defendants except John Hagaman, to be paid by the executors out of the assets of the said John H. Banta, which are now, or may hereafter be, in their hands to be administered, in the due course of administration.
Order accordingly.