125 Misc. 405 | N.Y. App. Term. | 1925
Plaintiff sued defendant’s testator as an individual for work, labor and services as a mechanic in the repair of certain houses
From the testimony of the wife, taken before her death, it is not clear whether the property was still held by her as executrix of her husband’s will or as devisee. Although it seems to be conceded that these services were proper obligations of Mrs. McColgan individually, a former action was begun against her as executrix. This judgment was entered in the Supreme Court upon default, and subsequently defendant moved to vacate the judgment, but the motion was denied and the denial affirmed on appeal. It appears that the work was done on the orders of Mrs. McColgan’s son who had complete charge of the property. At a certain stage of the transactions the son undertook to give notes signed by him as agent for the estate of John McColgan and the prior action was brought on these notes or renewals thereof. The present actions' are based not only on work, labor and services but upon the notes given therefor.
Plaintiff’s contentions on this appeal are in substance, first, that the practically unlimited power accorded to the son in the management of defendant’s property included the power to make the notes sued upon. We do not believe that general power to manage property includes the authority to bind the owner to negotiable commercial paper. Second, that the plaintiff had proved a cause of action for work, labor and services, and that if the notes sued upon are not effective as commercial paper, they nevertheless constitute an acknowledgment in writing sufficient to take the original debt out of the Statute of Limitations. This plea is unavailing in view of the fact that the notes themselves were executed more than six years before the beginning of these actions. Third, that a previous judgment recovered by the plaintiff on the same cause of action against the defendant as administratrix has the effect of res adjudicata. In support of this contention plaintiff cites a number of cases which are persuasive and support his view to an arguable degree. We do not believe, however, that decisions to the effect that under such and similar circumstances the provisions of the appropriate Practice Act (Code Civ. Proc. § 830; now Civil Practice Act, § 348) which permit the reading of the testimony of a deceased witness “ upon any subsequent trial * * * of the same subject-matter in the same or another action * * * between the same parties ” (Cohen v. Long Island R. R. Co., 154 App. Div. 603; Pratt, Hurst & Co., Ltd., v. Tailer, 135 id. 1), or which affirm the right to permit an amendment to correct the name of a defendant from a representative into an individual capacity without according to
Judgments reversed, with thirty dollars costs, and complaints dismissed, with costs as of one appeal, with leave to plaintiff to appeal to the Appellate Division.
All concur; present, Bijur, Levy and McGoldrick, JJ.