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Darling v. Halsey.

is conditioned upon the payment of the costs of the former trial. It is contended by the counsel for the appellant, that the order must be held to have been made on both grounds, and that, as in the case of an exception being well taken, a new trial is a matter of right, no such condition should have been imposed. There is no question about the rule of law, and the only point to be determined is whether the counsel is right in his construction of the order.

The condition as to the payment of costs was proper, if the order was made upon the second ground alone otherwise improper. From this, we think the presumption arises, that it was so made. There is no rule requiring an order to show upon what ground it is made, nor is the practice so uniform in that direction, as to overcome the presumption that the judge in deciding the motion has proceeded in accordance with the well established practice of the courts.

We accordingly think the order should be affirmed.

DARLING v. HALSEY.

N. Y. Supreme Court, First Department; Chambers, December, 1876.

EXECUTORS AND ADMINISTRATORS.-COSTS.

Executors under a will which directed them to compensate plaintiff for care of the testatrix, resisted the bill rendered by plaintiff therefor, and, the whole bill having been allowed by the referee : Held, that plaintiff was entitled to costs and an allowance.*

Motion for confirmation of referee's report and for

costs.

* See the next case, and Maryatt v. Riley, page 119 of this volume.

Darling v. Halsey.

Augusta Berwick lived with and was taken care of by Louisa A. Darling for some time before her death. In her will, after directing the payment of her debts, she requested that the kind friends with whom she was living should be well rewarded for their care of her, but did not direct any certain amount to be paid. After her death, the plaintiff presented a bill for the care, &c., of the decedent to Lawrence W. Halsey, the executor of the will. He did not at first dispute the bill; but after delaying to pay it for several months, finally, by advice of counsel, insisted on a reference. It was accordingly referred, and the referee reported in favor of the plaintiff for the full amount of her claim.

S. G. Courtney, for the motion.

Miller, Peet & Opdyke, opposed.

BRADY, J.-In this matter the demand was resisted, I think, unreasonably. The claims of the plaintiff on the estate were recognized by the testatrix and referred to in her will, as stated on the argument. This incident withdraws this case from the general rule applicable to similar proceedings, and warrants an award of costs and an allowance to be paid out of the estate. The defendants could have by proper inquiry established, doubtless, the amount of the claim, which alone was disputed, if indeed anything was in controversy. The claim was not gainsaid by any proof, and the plaintiff should not be subjected to the expense of proving her rights. Costs and an allowance of $25 granted.

Ordered accordingly.

Pinkernelli v. Bischoff.

PINKERNELLI v. BISCHOFF.

N. Y. Supreme Court, First Department; Chambers, December, 1876.

EXECUTORS AND ADMINISTRATORS.-Costs.

Where an executor refused to pay a claim for board and necessaries furnished to his testatrix on the ground that it was exorbitant, and upon a reference, the amount was reduced nearly one-half. Held, that the claim was not unreasonably resisted, and the plaintiff was only entitled to the fees of the referee and necessary disbursements.

Motion for confirmation of referee's report and for costs.

This action was brought against the defendant as executor, to recover the sum of $440.65 for board and necessaries furnished to his testatrix, a married woman. The executor refused to pay the claim because he considered it exorbitant. The case was sent to a referee, who reported only $242 due.

S. H. Stuart, for motion.

F. Leary, opposed.

BRADY, J.-In this case no exceptions were filed or taken to the referee's report. There is little doubt of the justice of the referee's conclusions. The only

question which appears to be litigated here is that in reference to costs. The claim herein was not unreasonably resisted. It was properly contested, and it was reduced. The plaintiff is duly entitled to recover, therefore, only the fees of the referee and necessary disbursements to be taxed (Code, § 317).

Ordered accordingly, and that the report be confirmed.

Exner v. Exner.

EXNER v. EXNER.

N. Y. Supreme Ct., First Department; Chambers,
June, 1876.

COMPLAINT.-CAUSE OF ACTION.-FALSE IMPRISONMENT.—IRRELE-
VANT ALLEGATION.-PLEADING.

In the complaint in an action for false imprisonment, an allegation of
a conspiracy of two of the defendants to imprison plaintiff, and that
in pursuance thereof two other defendants were employed to make
the arrest, is not irrelevant.*

Allegations that defendants entered plaintiff's house and arrested her, and another that they forcibly removed her therefrom and took her to jail, constitute only one cause of action. t

In an action action for false imprisonment, an allegation, in addition to the general averment of personal injury, that plaintiff was prevented from performing certain domestic duties; Held, irrelevant.

Motion to make complaint more definite and certain, and to strike out irrelevant matter.

Augusta Exner, the plaintiff, brought an action for $5,000 damages, against Julia Exner, Christian L. Schwartz, Walter Thorn, and William Stratton, for false imprisonment.

The complaint alleged: "First. That on or about April 21, 1875, the above-named defendants, Julia Exner and Christian L. Schwartz, wickedly and maliciously conspiring, contriving and intending to injure this plaintiff, and to deprive her of her liberty, did instigate and employ the defendants, Walter Thorn and William Stratton, to seize upon and arrest the person of this plaintiff, and by force and arms to take her from her home and children, in the city of Brooklyn,

* S. P., Ives v. Humphreys, 1 E. D. Smith, 196.

+S. P., Bebinger v. Sweet, 1 Abb. N. C. 263, and cases there cited; and Sheldon v. Lake, 9 Abb. Pr. N. S. 306; Colton v. Jones, 7 Robt. 164, 249.

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Exner v. Exner.

and deprive her of her liberty against her will, and in violation of the laws of the State of New York.

"Second. That in pursuance of such wicked and malicious conspiracy, the said defendants Thorn and Stratton, acting as the agents, and under the directions of the defendants Exner and Schwartz, and aided and abetted by them, did on or about the said 21st day of April, 1875, enter into the dwelling-house and residence of this plaintiff, in the city of Brooklyn and State of New York, and did then and there violently and with force and arms, seize upon and arrest the plaintiff, and did then and there wrongfully and unlawfully, and against the will and remonstrance of this plaintiff, forcibly remove this plaintiff from her said home and her family, and convey her to the common jail of the county of Kings, and State aforesaid, and incarcerated and imprisoned her therein for the space and period of one night and parts of two days, without any cause, and without any right or authority so to do, and against the will of the plaintiff.

"Third. That by reason of such wrongful acts of these defendants, this plaintiff was greatly injured in mind and bodily health, and in her good name, fame, and reputation, and was thereby prevented from attending upon her children (one of whom was very ill), and her necessary affairs and business, and was otherwise severely injured and damaged thereby."

The defendant moved that the first paragraph of the complaint should be stricken out as irrelevant and redundant; that the allegation in the second paragraph should be made more definite and certain, so that the precise nature of the charge be made apparent, whether a trespass upon lands was intended to be charged, and that the alleged injury to the person in the same paragraph should be stated separately from the other matter charged therein; and that the words, "and was thereby prevented from attending upon her children

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