# Varick v. Bodine

> New York Supreme Court · July 15, 1842 · 3 Hill & Den. 444

URL: https://www.frixlaw.com/law-library/cases/5466193

## Case

- **Full name:** Varick, &c. v. Bodine and others
- **Court:** New York Supreme Court
- **Decided:** July 15, 1842
- **Citations:** 3 Hill & Den. 444
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bronson
- **Judges:** Bronson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5466193

## Opinion text

By the Court, Bronson, J.
It is settled that the defendant may plead in bar that the plaintiff is not executor. (Thomas. v. Cameron, 16 Wend. 579 .) After a regular demand of oyer the declaration is not complete until the oyer has been furnished. The demand was made before the time for pleading had expired, and the default was therefore irregular.
*445 Although costs are not in general allowed against an executor or administrator, there is no reason why he should not pay costs where his proceedings are set aside for irregularity. It has been held that an executor plaintiff must pay costs on a judgment of non pros. (Rudd v. Long, 4 John. R. 190.) So on a judgment as in case of nonsuit; (Brown v. Lambert, 16 John. R. 148 ;) and for a default in not proceeding to trial pursuant to notice without a sufficient excuse. (How v. Taylor, 1 Wend. 34 .) The motion.must be granted with costs.
Ordered accordingly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5466193. Public record. Not legal advice.