3 Denio 261 | N.Y. Sup. Ct. | 1846
It has been said, though it was not then necessary to decide the question, that the creditor can never recover costs where the claim was not presented to the executor within the running of the six months’ notice. (Bullock v. Bogardus, 1 Denio, 276.) In this case the claim was not presented within the six months, nor until more than seven years had elapsed, for the obvious reason that until the plaintiff paid the money in 1843 he had no claim to present. He was only a co-surety with the testator in a bond upon which a right of action might never arise against any one. Does the statute apply to such a case, which could hardly have been in the mind of the lawmakers'? There is force in the argument of the plaintiff’s counsel, that the notice is addressed to “ creditors,” or “ persons having claims against the deceased(2 R. S. 88, § 34;) and as the plaintiff was not a creditor, and had no claim at that time, he does not fall within the influence of the 41st section, which regulates the recovery of costs: and if the case is not within that section, it then comes under the general provision for costs in all cases where, debt or damages are recovered. (2 R. S. 613, §§ 4, 5; id. 618, § 37.) But we think the language of the 41st section is too broad to be got over. It provides, that no costs shall be recovered against executors in any suit at law, “unless it shall appear that the demand on which the action was founded, was presented within the time aforesaid.” There are no qualifying words; and we cannot make an exception, however probable it may be that an exception would have been made had a case like this been thought of by the lawmakers.
Motion denied.
