9 Wend. 486 | N.Y. Sup. Ct. | 1833
By the Court,
There is no objection to the execution on the ground of variance from the record. The plaintiff is described in the record as collector, and he is so described in the execution; but that is mere description, and no admission that he was in truth collector. The record finds that he was not, and never had been collector, &c. The execution, I apprehend, was not set aside on that ground, nor because the word mayor is left out after the mayor’s name in
Two questions arise upon the regularity of the execution issued in this case. 1. Was the plaintiff liable to costs? 2. If liable, was a special motion to the court to award costs necessary ? If the plaintiff could have prosecuted in his own name without setting forth his representative character, then he is liable individually. The revised statutes, in my opinion, have not altered the law as to executors and administrators plaintiffs, where costs only are in question, unless these costs are to be paid out of the assets. Whatever contrariety of decision may have taken place in England as to the liability of executors and administrators prosecuting as plaintiffs, the rule in this state appears to have been uniform. In Filton’s
Was it regular to issue execution without motion to the court for that purpose ? All the cases on this point have arisen on special motions for costs; but I do mot find it adjudicated that a special motion shall be made where the plaintiff is personally liable. In such cases, he is stripped of his representative character, and stands as an individual before the court. Had the defendant in this case in fact prosecuted in his own name, without any addition or description of character, there could hardly be a pretence for saying that a special 'motion was necessary to charge him with costs. He Is, so far as costs are concerned, not prosecuting as collector, but in his own right for his own property. All the sections of the revised statutes, except the-17th section, page 615, relate to executors or administrators in their representative capacity, and therefore have no application to this case. Thus far, I have considered the case upon the affidavits. The record places the case clear of any doubt. According to it, the plaintiff sued as collector. If the record was erroneously made up, it should have been corrected by. a motion to the mayor’s court for that purpose ; while it remains as it is, it fully justifies the execution. In my opinion the court below erred in setting aside the execution, and the mandamus must be granted, with costs.