77 N.Y.S. 40 | N.Y. App. Div. | 1902
On a former appeal from an order granting a motion to amend a warrant of attachment (59 App. Div. 128) we held on authority
Mr. Morse, one of the executors of the will of Robert King, deceased, accepted from the defendant his note for $9,000, dated May 1,1878, payable to “ Morse, ‘ Executor,’ or order,” for the purchase price of the interest of the decedent in the business of the firm of Robert King & Son. In November, 1900, Morse, by written assignment to the plaintiff, transferred one-fifth part or portion of the said promissory note and all moneys due thereunder. Some payments have been indorsed upon the note, and the plaintiff brings this action to recover one-fifth of the balance remaining unpaid. The defendant set up the Statute of Limitations and pleaded that Mr. Morse and his co-executor were the real parties in interest, no settlement of the estate having been made. The note was produced at the trial, but there was no indorsement hy Morse, who testified that the note had not been delivered to the plaintiff, but had always remained in his possession ; that he had assigned one-fifth part of it to each of the five beneficiaries of the estate. There is no other property of the estate and there are no debts.
At the trial the defendant moved to dismiss on the grounds “ that the plaintiff had failed to make out a cause of action; that the plaintiff was not entitled to maintain this action; that the plaintiff was not the real party in interest; that George F. Morse was the real party in interest, and that under the Negotiable Instruments Law
The decision of the learned justice rests upon the ground that the obligation of the defendant is single and cannot be divided into parts; that only one action can be maintained for the debt in its
The judgment and order must be affirmed.
All concurred.
Judgment and order affirmed, with costs.
Laws of 1897, chap. 612, § 62.— [Rep.