8 Johns. 440 | N.Y. Sup. Ct. | 1811
There is no well-founded objection to the counts in the declaration. In all of them the cause of action is stated to have arisen in the life-time of the.intestate, and though the promise by the defendant is not stated to be made by him as administrator, yet it is stated, in every instance, that the cause of action arose, and a promise to perform it was made, by the intestate, and a promise also by the defendant, “ administrator as aforesaid.” In one part of the 5th count, this addition is omitted, but in the latter part of the count, the notice of the value of the service is stated to be given to him, “ administrator as aforesaid.” The breach states, that all the defaults were by the intestate in his life-time, and by the defendant, M administrator as aforesaid.” In no one instance, is the defendant charged in his own right. He is charged throughout, as administrator, and any objection to the ©mission in stating the promise to have been made by him, as administrator, or in omitting that addition in part of the 5th count, was, in this case, only the omission of matter of form, and is good after verdict. The case of Brigden v. Parkes (2 Bos. & Pull. 424.) is not applicable; for there the executor was charged as being liable in his own right, and the cause of action to have arisen after the testator’s death. If any one count had so charged the defendant, it is admitted, it could not have been joined with a count against him, in his representative character. But a count on a promise made by an executor or administrator, as such, and in which he is not charged as personally liable, may be joined with a
Motion denied»