58 N.Y.S. 850 | N.Y. Sup. Ct. | 1899
This is an action at law to recover a certain sum of money from the defendant on an indebtedness alleged to be due to the plaintiff' from the testatrix of the defendant at-the time of her death. The. complaint alleges that the defendant Harrison was appointed executor in the state of'New Jersey; that the testatrix resided without this state at the time of her death, and th'at ■she left property in this state and in the state of New Jersey. It ' has frequently been 'held that the words “ executors of the estate ■of” in the caption of a complaint are descriptive of the person, and do not imply that the person is sued as executor. If the complaint be construed as one against the defendant personally, no ■cause of action is set tip in it. It was contended, however, on the .argument that the action was against the defendant as executor. "Viewed in that light, the complaint does not set forth a cause of action. It has frequently been held by the courts of this state that a foreign executor cannot be sued purely in his representative ■capacity in the courts of this state. Flandrow v. Hammond, 13 App. Div. 325; Field v. Gibson, ,20 Hun, 214, and cases there cited. It is claimed, however, that the allegation in the complaint that the defendant has assets of the testatrix in his possession in this state gives this court jurisdiction. That point was considered in Field v. Gibson, supra, and it was there held" that an action cannot
Demurrer sustained, with costs.
