121 N.Y.S. 1013 | N.Y. Sup. Ct. | 1910
The plaintiff’s intestate, who was his wife, was killed by a fire occurring in apartments in a building on North street in the city of Rochester, on the 35th day of July, 1906. On the 19th of • October, 1907, having been appointed her administrator, he commenced this action for damages on account o.f her death against the defendants as executors of the estate of Abraham Boss, alleging that at the time of her death and for upwards of a year prior thereto she had occupied these apartments under lease from the defendants, and that the fire in the building which caused her death was caused by the negligence of an agent or employé of the defendants in leaving oily rags about the building in which the fire started, and alleging generally the negligence of the defendants in failing to furnish deceased a reasonably safe place in which to live, to adopt proper rules and regulations for the management of the premises, in failing to inspect, whereby the building became unsafe and untenantable, and that no proper means of exit was provided or maintained, or suitable light and air shaft or fire escape as required by the city ordinance.
The cause has been at issue for over two years, and has been on the calendar for trial during most of that time. Plaintiff’s attorney having discovered that the liability, if any, for the acts alleged in his complaint, was against the defendants personally, and not in their representative capacity as executors, has made this motion to amend so as to describe the two defendants who were personally served as being sued individually as well as executors, and to add'to the description of all the defendants the further designation “as trustees of the estate of Abraham Boss, deceased,” and for leave to serve an amended complaint setting up substantially the same facts alleged in the original complaint, and
The motion is opposed on the ground of laches, defendants claiming to have lost the benefit of one witness who has died and of another who has disappeared, whose testimony would tend to show that plaintiff’s intestate was intoxicated at the time of the fire, but for which she might have escaped injury, and the contention of' defendants’ counsel is that, believing that he had a sufficient defense to the action in that the liability, if any, was against the defendants personally, and not as executors, he refrained from pressing the case to a speedy trial as he would otherwise have done to avail himself of the testimony of these witnesses before it was too late. There is much force in defendants’ position on this point; still their counsel was not entirely justified in assuming that no effort would be made to change the form of the action so as to seek to hold defendants to personal liability. He was evidently laboring under the erroneous impression that after the three-years statute of limitation had run plaintiff would be unable to convert the action into one against the defendants individually, which turns out to be true as respects the defendant Mary A. Zoller, who was not served with process, but not so as to the other defendants.
It is the settled law in this state that this court has the power to permit an amendment changing the capacity in which the defendants are sued, even after it will be too late to bring such an action by reason of the statute of limitations. In the case of Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262, 79 N. E. 999, 9 L. R. A. (N. S.) 399, 116 Am. St. Rep. 599, it was held that an amendment was properly allowed at the Special Term striking out the words “as substituted trustee under the will of Matthew Burns, deceased,” after the name of the defendant the United States Mortgage & Trust Company, so as to convert the action into one against this defendant individually, although at the time this order was- made the three-years statute of limitations had run so that the plaintiff could not have sustained a new action against the defendant individually for the same cause of action, being an -action of negligence for personal injuries. And in Johnson v.
But the plaintiff is not content with converting this action into one against the defendants as individuals, but wishes to continue the case against the defendants both individually and in their representative capacity, and he claims to have alleged facts from which a recovery may be had against the defendants in both capacities, or to have brought the case within the provisions of section 1815 of the Code, which provides that an action may be brought against an executor or administrator personally and also in his representative capacity (1) where the complaint sets forth a cause of action against him in both capacities, or states facts which render it uncertain in which capacity the cause of action exists against him; and (2) wheré the complaint sets forth two or more causes of action against the defendant in different capacities, all of which grow out of the same transaction or transactions connected with the same subject of action.
I am satisfied that the complaint which plaintiff now wishes to serve does not state a cause of action against the defendants in their representative capacity. It alleges in general terms that the defendants’ testator'Abraham Boss, erected this building himself, and that he failed to comply with certain provisions of the building ordinances of the city of Rochester, whereby the building was rendered unsafe for occupancy by tenants. No particular building ordinance is pleaded, and unless great and unusual latitude were permitted at the trial, the plaintiff under this complaint could not give in evidence any particular municipal ordinance, for, like private statutes, municipal ordinances to be availed of must be pleaded. Harker v. Mayor, 17 Wend. 199; People v. Mayor, 7 How. Prac. 81; Moak’s Van Santvoord’s Pleadings (3d Ed.) 436. A private statute may be pleaded by reference to its title and chapter and the year of its passage, but this is because of section 530 of the Code, which permits it. There is no such provision for pleading municipal ordinances, and I see no escape from the conclusion that such ordinance, to be availed of in a pleading, must be set forth at large.
The plaintiff is not, therefore, in a position under the proposed complaint to prove that Abraham Boss violated any particular city ordinance, but beyond this it is not alleged that any of these defects were hidden or secret defects not discoverable by every one who went into the building; but the defects are of such a character that both defendants and plaintiff’s intestate and plaintiff himself, who occupied these apartments part of the time with his wife, must, in the nature of things, have known all about thém; So the case is not what it might have been if Abraham Boss had constructed an unsafe structure by defects and faults which wére hidden from view, knowing the use that
In Keating v. Stevenson, 21 App. Div. 604, 47 N. Y. Supp. 847, the late Justice Rumsey considered this question, and held that where trustees under a will were given certain real estate to receive the rents and profits, and pay them over to certain beneficiaries, the liability for defective condition of this real estate, whereby a person lawfully on the premises was injured, was against the trustees .as individuals, and not against the estate or the beneficiaries, and he says in the course of his opinion:
“The duty of the care of the property seems to be one that is inherent ini the ownership of it, and the distinction seems to be that the person who is legally the owner of the property has imposed upon him, by reason of that ownership, the duty of keeping it in proper repair, and that for a violation of that duty he is personally liable; whereas if he has no title to the property, but simply performs certain duties which are imposed on him with reference to it, his liability is not personal, and grows out of his official situation.’’
The complaint does not set out any copy of the will of Abraham Boss, nor does it allege what right or interest in this property is given to these executors under that will. Hence, we do not know from anything contained in the complaint whether the defendants have the legal
It does not seem proper to permit this complaint to be amended with a view to continuing the action against these executors in a representative capacity on such allegations as are now proposed; nor, does it seem proper to make an order here for the amendment of the complaint to substitute the defendants individually as the sole defendants,for that is not the relief asked in the notice of motion.
Accordingly, I think the present motion must be denied, with costs, with leave to the plaintiff to renew upon new papers and a new complaint, obviating the defects which are here pointed out.