149 N.Y.S. 791 | N.Y. Sup. Ct. | 1914
The defendant demurs to the amended complaint upon the grounds:
1. That the amended complaint does not state facts " sufficient to constitute a cause of action.
2. That there is a defect of parties defendant in that the personal representatives of the estate of John Henry Harbeck, deceased, who are necessary parties, are not made parties defendant.
3. That there is a defect of parties defendant in that the executrix of the estate of John Henry Harbeck, deceased, a necessary party, is not made a party defendant.
4. That there is a defect of parties defendant, in that the United States Trust Company of New York, a necessary party, is not made a defendant.
The amended complaint seems to me to state a cause
This, briefly stated, is the substance of the plaintiff’s
This case is distinguishable from the cases cited by the defendant, because in this case the plaintiff was the infant son of one of the parties to the mutual agreement, and the other party to the promise, as well as the executrix, kept the agreement by actually paying the income of the fund over to the plaintiff, and making the first payments while the plaintiff was still an infant.
These facts, I think, entitle the plaintiff to enforce the contract against the defendant, who is John Henry Harbeck’s residuary legatee. Todd v. Weber, 95 N. Y. 181; Buchanan v. Tilden, 158 id. 109; Murphy v. Whitney, 140 id. 541; Brown v. Spohr, 180 id. 201; Locke v. Farmers’ Loan & Trust Co., 140 id. 135.
The plaintiff’s claim is not barred by the decree of the New York county Surrogate’s Court settling the account of the executrix of John Henry Harbeck, and directing that all “ assets and property whatsoever belonging to the estate of John Henry Harbeck be delivered to the defendant.”
The claim that there is a defect of parties defendant, in that (a) personal representatives of John Henry Harbeck are not.made defendants; (b) the executrix of the estate is not made a defendant, and (c) the United States Trust Company, the former'depository of the fund, is not made a defendant, is without merit.
The agreement of June 16, 1894, did not charge any duties as to the fund upon any of these persons, and the fund is now in the sole possession of the defendant.
The demurrer' will be overruled, with leave to the defendant to answer within twenty days, upon payment of costs.
' Demurrer overruled, with leave to defendant to answer within twenty days, upon payment of costs.