Winne v. Van Schaick

By the Court, Nelson, J. Executors and administrators are not liable to costs, unless-it appear that the demand of the plaintiff has been unwarrantably resisted or neglected, or that the executor or administrator has refused to submit the matter to referee's, 2 R. S. 90, § 41; and such facts must be shewn to the court before judgment for costs be signed, 5 Wendell, 74, and will not be listened to in opposition to a motion to set aside a judgment entered without leave, as the defendant has the right to be heard on such question. Had the judgment been duly entered, the execution issued improperly, as by the provisions of the statute on this subject no execution can issue upon a judgment against an executor of administrator until an account of the administration shall have been rendered and settled, or an order for that purpose shall have been obtained from the surrogate. 2 R. S. 88, § 32. The judgment and execution are both irregular, and must be set aside.