Robertson v. Sheill

Decided April 15, 1846

New York Supreme Court · decided 1846-04-15

The action was upon a sealed note made.by the intestate payable to the plaintiff. The demand was presented to the defendant pursuant to' a notice published by him as administrator, but he refused to pay An offer to refer according to the statute was duly made and declined by the defendant. This action was then brought and the plaintiff recovered $645,73, the cause having been tried by referees.

Decided 1846-04-15

By the Court, Beardsley, J.

¶1Costs are not asked on the ground that “ payment was unreasonably resisted or neglected,” but because “ the defendant refused to refer ” the demand pursuant to the statute. (2 R. S. 90, § 41.) No defence at law was pretended. The plaintiff was required to present his demand to the administrator, and was at liberty to bring suit for its recovery. Consenting to a reference would not have furnished an obstacle to relief in equity. As the defendant refused to refer, and a report has been made in favor of the plaintiff for the amount of his demand, he is entitled to his costs, unless the defendant shall finally prevail in the court of chancery.

¶2Motion granted.