31 Misc. 651 | City of New York Municipal Court | 1900
This is an action brought by all the next of ■kin of James Keegan, deceased, except the defendant, Michael Keegan, who is the administrator of said James Keegan, deceased, against John Smith and Edward McGuire, who are the Sureties ■of said administrator’s bond. John Smith only defends. The issues herein, with the 'exception of one, have been discussed and decided by the Appellate Division on a former appeal. See McMahon v. Smith; Keegan v. Smith, 24 App. Div. 25.
The defense or issue, which constitutes the one exception, above mentioned, is set up in an amended answer, interposed after the -decision of the above-cited cases, and is as follows: That the surety of the administrator is not liable for the three judgments ■obtained by the administrator’s intestate, in her lifetime, against the administrator, because the latter was, at the time of the death of the intestate, and ever since, has been insolvent and wholly unable to pay said indebtedness. The liability imposed by 2 Revised Statutes, m. p. 84, section 18, is as follows: “ The ■naming of any person executor in a will, shall not operate as a
Judgment affirmed, with costs.
Eitzsimoes, Oh. J., concurs.
Judgment affirmed, with costs.