180 Misc. 548 | City of New York Municipal Court | 1943
Plaintiff moves for summary judgment against the defendant Hazel L. Hill individually and also as executrix of the last will and testament of Dean Hill, deceased. •
The action is to recover the agreed price and reasonable value of work, labor and services performed and materials furnished
With respect to the application for judgment against the defendant Hazel L. Hill as executrix, the motion is denied. It is the rule that where, as here, the partnership arose out of a contractual relation and the obligation of the partners is joint and not joint and several (Partnership Law, § 26, subd. 2), it is necessary to allege and prove inability to collect from the surviving joint defendants in order to enforce the legal liability against the executor of the deceased defendant. (Potts v. Dounce, 173 N. Y. 335; Barnes v. Brown, 130 N. Y. 372; Seligman v. Friedlander, 199 N. Y. 373.)
Settle order on two days’ notice, which shall provide for ten days’ stay of execution after service of notice of entry of judgment and also for a severance of the action as to the defendants not served.