LILLIAN B. LEAVITT, as Executrix, etc., of JOSEPH B. FRIEDLANDER, Deceased, Respondent,
THE JAMES F. SCHOLES COMPANY, Appellant.
APPEAL by the defendant, The James F. Scholes Company, from a judgment of the Supreme Court in favor of the plaintiff,
entered in the office of the clerk of the county of New York on the 19th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 22d day of May, 1911, denying the defendant's motion for a new trial made upon the minutes.
Decker, Allen & Storm, for the appellant.
Gerald B. Rosenheim, for the respondent.
In my opinion it was error to deny the motion to dismiss the complaint. It appears from the complaint and the epitome of the evidence printed in the case that plaintiff is carrying on the business formerly carried on by her decedent, and is doing so under his name. The property which is the subject of this action was purchased by her in the course of such business. It is well settled, as I understand it, that a cause of action arising under such circumstances is personal to the executor, and not one belonging to the estate. (Austin v. Munro, 47 N.Y. 360; Willis v. Sharp, 113 id. 591; O'Brien v. Jackson, 167 id. 31.) This is not a case where the goods are shown to have belonged to the decedent in his lifetime, and the injury was effected after the death. It is not, therefore, one of the class of cases in which it has been held that an action might be brought either by the executor individually or in his representative capacity. In my opinion the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
MILLER and DOWLING, JJ., concurred; INGRAHAM, P. J., and LAUGHLIN, J., dissented.
LAUGHLIN, J. (dissenting):
At the commencement of the trial, after counsel for the plaintiff had opened the case, counsel for appellant moved to dismiss the complaint on the ground that the cause of action was not vested in the plaintiff as executrix but individually, since it appeared that the negligence of the appellant which caused the damages was in the execution of a contract made by the plaintiff with the appellant in conducting the business
of the estate as executrix. The motion was denied and an exception thereto was duly taken. The plaintiff then offered evidence tending to establish the facts alleged in the complaint, and the appellant introduced evidence, but the record shows that the evidence in the main has been omitted, for the reason as stated in the record that 'the appellant desires to review on this appeal only the ruling of the Court on the motion to dismiss on the ground that the action should have been brought by the plaintiff in her individual capacity, instead of as executrix.' At the close of the evidence, counsel for the appellant renewed his motion to dismiss 'on the ground that the plaintiff, as executrix, is not the proper party plaintiff,' and to the denial of this motion duly excepted.
Counsel for the respondent attempts in the first instance to sustain the judgment on the ground that, if the action should have been brought by the plaintiff individually and not as executrix, this relates to her legal capacity to sue, and the objection should have been taken by demurrer or answer, and not having been so taken was waived. Want of legal capacity to sue is a ground of demurrer where the incapacity appears on the face of the complaint (Code Civ. Proc. § 488, subd. 3), and where it does not appear on the face of the complaint, the objection may be taken by answer (Code Civ. Proc. § 498), and if such objection is not taken by demurrer or answer it is waived. (Code Civ. Proc. § 499.) It was held in White v. Joy (13 N.Y. 83) that where an action is brought in a representative capacity and the complaint fails to allege facts showing that the plaintiff is the representative he claims to be, this is want of legal capacity to sue, the objection to which could be taken only in the manner provided by the provisions of the Code of Procedure corresponding to those of the present Code of Civil Procedure. There are many decisions in this jurisdiction which sustain the contention that where a plaintiff sues in a representative capacity, an objection that the ...