Christopher v. Stockholm

5 Wend. 36 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

The counsel for the plaintiff defends his declaration distinctly on the ground that it is throughout a declaration in the representative character of the plaintiff as administrator, and that the causes of action which it sets forth appear with sufficient certainty to have accrued to him in that character.

The declaration commences as follows; “Joshua Chris-Gopher, administrator of all and singular the goods and chatte^s James M. Christopher, deceased, who died intestate, at l*le tIme death, plaintiff in this suit, &c.” and then throughout the declaration there is no farther allusion to his representative character; but he is spoken of in all the counts simply as the said plaintiff. At the end of the declaration, a proferí is made of the letters of administration. Now the second count is for the work and labor, care and diligence of the said plaintiff, done,'performed and bestowed in and about the business of the defendant. This was a cause of action belonging to him in his private and individual, not bis representative capacity. He could not, as administrator of another, have labored or performed any personal services for the defendant; and it could not be joined with a cause of action accruing or belonging to him as administrator. Admitting the other counts to stale, with sufficient certainty, that the causes of action and promises contained in them arose and were made to the plaintiff as administrator, then the second count is improperly joined with them, and the declaration is bad on that ground upon general demurrer. 1 Chitty's Pl. 185, 6, ed. of 1828, and cases there cited. 12 Johns. R. 349. 8 id. 440. 2 Bos. & Pull. 424. 4 T. R. 347. 7 Cowen, 58. 3 Wendell, 245. If it should be contended that the declaration is throughout in the individual character of the plaintiff, then the special cause of demurrer is well taken, as the profert of the letters of administration would in that case be surplusage. But I am inclined to think that all the counts are bad, and that they cannot be construed as alleging any indebtedness or promise to the plaintiff in his representative capacity. This case is distinguishable from that of Stanley v. Chappell, 8 Cowen, 237. Besides, that case was decided on another ground, and what was said upon this point was not called for.

Judgment for defendant on demurrer, with leave to plaintiff to amend.