Runnell a. Griffin. RUNNELL a. GRIFFIN. Supreme Court, First District; Special Term, December, 1858. JUDGMENT FOR COSTS.-MOTION. In an action for damages for the taking of personal property, the plaintiff recovered six cents, which was paid at the trial. The defendant entered judgment for his costs, which the plaintiff moved to set aside. Held, that though the defendant's proper course, where in such case the plaintiff refuses to enter judgment, so that he cannot have his costs inserted on notice, was to move for leave to enter judgment for his costs, it would be useless to vacate the judgment, as he would be entitled upon the same papers to leave to enter it again; and the motion should be denied without costs. Motion to vacate judgment. The facts are stated in the opinion. INGRAHAM, J.-The plaintiff recovered six cents in an action to obtain damages for taking personal property. This is within subdivision 4, section 304. The plaintiff is not entitled to costs unless he recovers $50-and if he is not entitled to costs, the defendant is under section 305. Where the plaintiff recovers a verdict for an amount not sufficient to carry costs, and the defendant is entitled to costs, the former practice I suppose to be still in force, viz.: that there can be but one judgment roll, and that the defendant's costs must be inserted in the judgment of the plaintiff for his recovery. If the plaintiff will not enter up judgment, the defendant must move for leave to do so. If the plaintiff enters up his judgment, the prevailing party (which in 10 How. Pr. R., 554, is construed to mean the party prevailing as to costs), may on two days' notice have his costs inserted in the judgment by the clerk, and in such case a motion would be unnecessary. In the present case the plaintiff has not entered up any judg ment, because the damages are nominal, and, as was stated on the argument of the motion, because they were paid at the time Eagle a. Fox. of trial. It would have been a matter of cause to grant the defendant leave to enter the judgment for his costs, and there is no ground for vacating the judgment entered by him, because no other judgment can be entered in the action. It would be an idle ceremony to set aside this judgment, for the purpose of compelling the defendant to move for leave to enter up the judgment, and then give him leave to file the same papers anew, and enter his judgment. The same end will be better attained by denying this motion. Motion denied without costs. EAGLE a. FOX. Supreme Court, First District; General Term, November, 1858. PARTIES.-SUIT BY EXECUTOR OR ADMINISTRATOR. An executor who for a consideration proceeding from the estate of the testator, takes a note payable to him as executor, may maintain an action thereon, in his representative capacity. Appeal from a judgment. The facts are stated in the opinion. BY THE COURT.*-INGRAHAM, J.-The plaintiff, as executor, sued one Wright for a claim due to the testator. When the action was proceeding to judgment, the defendant gave this note in suit, and another to the plaintiff as executor, and took from the plaintiff an assignment of a decree made by the surrogate in favor of the plaintiff as executor against Wright. The note not having been paid, the plaintiff, as executor, brings this action to recover the same. The defence is, that the action should have been in the name of the plaintiff individually. There is no doubt that the note was given in payment of a * Present, DAVIES, P. J., CLERKE and INGRAHAM, JJ. Eagle a. Fox, claim due to the testator's estate by the defendant, and the simple question is, whether an executor who sells goods, or choses in action belonging to the estate which he represents, may collect payment therefor in his capacity of executor. Of this I think there can be no doubt. The property belongs to the estate; for the proceeds of the note the executor will be required to account, and personally he has no interest in the proceeds. He might have maintained the action in his own name, it is true; but he was not necessarily compelled to do so. On the contrary, under the present system which requires a plain statement of facts in the complaint, I think the law is better obeyed by bringing the action according to the truth, than in doing so under a legal fiction. "The In Merritt a. Seaman (2 Seld., 168), the promises were averred to have been made to the plaintiff individually, and it was there held that in such a case the defendant could not set off a claim against the estate. Judge Gridley in that case says, plaintiff might have sued in his representative character or individually, as he chose ;" and Justice Gardiner in the same case says, "The note was made after the death of the plaintiff's testator, and would maintain an action either in the name of the plaintiff as an individual or as executor." In the complaint, the facts are so set out as to show the consideration for the note to be a claim due to the estate, and the promise to be made to the executor. The case of Blanchard a. Strait (8 How. Pr., R., 83), only shows that where a plaintiff in his summons described himself to be suing in a representative capacity, he cannot complain for a cause of action due to him. individually; and in McMahon a. Allen (12 How. Pr. R., 46), the reverse of the proposition was held, that a plaintiff who commenced his action as an individual, could not afterwards change it into one for a claim held by him in a representative character. Both of these cases are rather in the plaintiff's favor than the defendants. The judgment should be affirmed. Kingsland a. Bartlett. KINGSLAND a. BARTLETT. Supreme Court, First District; General Term, December, 1858. JUDICIAL SALE.-APPEAL. An order made on a motion to open a judicial sale on grounds not affecting the regularity of the proceedings, is in the discretion of the court, and is not appealable. Motion to dismiss an appeal. The facts are stated in the opinion. BY THE COURT.*-CLERKE, J.-An application to open a sale under a judgment, on the ground of a misapprehension as to the time of sale, or any other circumstances not affecting the regularity of the proceedings, must necessarily be addressed to the discretion of the court. And this discretion is regulated, as in every case where the court is called to exercise it, by the consideration-whether, from the collateral facts, the conduct of the parties, and perhaps the amount for which the property was sold, it would be expedient, in justice to all concerned, including the purchaser, to order a re-sale. This excludes the idea of any right on the subject. There can be no right where no legal mistake has been committed by those who have conducted the proceedings. There may be hardship; but it is entirely for the consideration of the judge who hears the application. I think, therefore, the appeal should be dismissed, with $10 costs. * Present, DAVIES, P. J., and CLERKE, J. Potter a. Davison. POTTER a. DAVISON. Supreme Court, First District; Special Term, October, 1858. INQUEST.-NOTICE OF TRIAL. The plaintiff cannot take an inquest at a circuit for which he has not served a notice of trial, although he has been called there by a notice of the defendant. Motion to open inquest. In this case, and another against the same defendant, inquests were taken by the plaintiff, which the defendant now moved to DAVIES, J.-The inquests were taken at the September circuit, 1858. The plaintiff did not notice the causes for trial at that circuit: the defendant did notice them. They were called on the 21st of September, and on plaintiff's motion, set down for Thursday the 23d. On that day being reached on the day callendar, they were called, and no one appearing on the part of the defendant, an inquest was taken in each case. The question presented for decision is, can the plaintiff proceed to take an inquest at a circuit at which he has not noticed the cause for trial, and when he has been called there only on the defendant's notice? Rule 29 authorizes inquests only to be taken at the opening of the court, at any day after the first, when the intention to take the inquest is expressed in the notice of trial. In the present case, the party taking the inquest has given no notice of his intention so to do, and has given no notice of trial. It is very clear to my mind that he could not do so in the absense of such notice. It was urged on the argument that the case of Rey a. Thompson (8 How. Pr. R., 253) was an authority to sustain the practice in these cases. But an examination of that case will show, that it decided |