58 A.D. 250 | N.Y. App. Div. | 1901
An action was brought against the plaintiffs as executors of Arthur Iff. Foley, deceased, by one Julius Scharmann. The complaint in that action being dismissed, the defendants entered judgment for costs against Julius Scharmann therein; the latter appealed to the Appellate Division of this department and gave an undertaking therein in which the defendants herein became sureties. The judgment was affirmed (Scharmann v. Schoell, 38 App. Div. 528), and judgment for costs of appeal was entered against Scharmann, who, having failed to pay the judgment, these plaintiffs, as individuals, brought this action against the defendants upon the undertaking after due notice of the entry of such judgment had been given the defendants. The defendants answered jointly, admitted the averments of the complaint by not interposing any denial thereto, and for. an affirmative defense they set up a counterclaim arising out of the following facts: That prior to the commencement of this action, Sophia Blust was duly appointed the administratrix of Gustave Froeschle, and letters of administration were thereupon issued to her; that upon the issuance of such letters said Blust gave a bond, as required by law, in which Frederick Scharmann and Arthur M. Foley became sureties; that thereafter the said Foley died, leaving a last will and testament, which was duly probated and letters testamentary issued to the plaintiffs in this action, and that any liability arising out of the bond given by Blust survived his death and became a liability against his estate in the hands of such executors; that subsequently proceedings were had resulting in a decree of the Surrogate’s ■ Court of the city and county of Hew York against the said Sophia Blust for a sum of money found due and owing from the estate of her intestate, and in such decree costs were awarded in the sum of ninety-three dollars and ten cents; that during the pendency of the proceedings resulting in the decree the surrogate made an order of reference, under which were incurred disbursements amounting to ninety-six dollars and twenty-five cents, and this sum, in the decree, was ordered to be paid by the said Blust as a proper disbursement; that by the
We think that this demurrer should have been sustained. The counterclaim pleaded does not arise out of the same transaction set up in the complaint, nor does it set up a cause of action upon which the defendants could recover against these plaintiffs as individuals in an independent action. The averment of the answer setting up the counterclaim was against the plaintiffs in their representative capacity as executors of Arthur M. Foley, and constitutes a claim against the estate. Such claim cannot be enforced against the plaintiffs individually upon any ground shown by the defendants in their answer. The defendants when they drew their pleadings, must have been impressed with this view, because the demand for judgment is against the plaintiffs as executors, and the averments of the answer are consistent with such demand: bfo amendment of
The interlocutory judgment overruling the demurrer should, therefore, be reversed and the demurrer sustained, and the final judgment should be reversed and final judgment directed for the plaintiff, with costs of this appeal and in the court below.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Interlocutory judgment reversed and demurrer sustained, and final judgment reversed and final judgment directed for plaintiff, with costs in this court and in the court below.