6 N.Y. 167 | NY | 1852
— The.defendants have recovered 171 4 a .judgment in this cause, upon'the report of a referee,, for over two thousand - dollars, against the estate of John Sampson, deceased, upon pleadings which, by. the established principles of construction, involve only matters in dispute between the defendants and the plaintiff in his individual capacity. The evidence of the set-off against . John Sampson, deceased, was objected to,
There is another objection to this evidence, which I regard as fatal to the judgment, and which it is competent for the plaintiff to avail himself of on this appeal. 1. I have said, that this is a suit by the plaintiff in his individual, and not in his representative character. This is a very important proposition; for if I am right in this conclusion, then the judgment against the plaintiff, as executor, which is really a judgment against the estate of John Sampson, is, upon the record, just as erroneous, as if, in a suit by A. against B., a judgment should be rendered against 0.
The declaration commences in the following form: “ Charles H. Merritt, executor of the last will and testament of John Sampson, deceased, plaintiff in this suit, by A. K. Hadley, his ^attorney, complains of John F. Seaman,” &c. This is the only part of L the declaration that contains any indication that the suit is brought by the plaintiff in any other than his individual character. The promises are all laid to the
The plaintiff might have sued in his representative character, or individually, as he chose (Mowry v. Adams, 14 Mass. 327), though the cases in 1 Peters and 16 Mass, hold, that a suit by the executor in his individual capacity is the most appropriate to the legal rights of the parties. In the present case, there is no notice of a set-off against the plaintiff as executor, nor any allusion to any indebtedness of Sampson, the testator, to the defendants. Upon this state of facts, it is apparent, that the judgment against the plaintiff as executor presents an error on the record, which it is the duty of this court to correct.
2. There was also a claim of over four hundred dollars allowed by the referee, and which entered into the judgment, under an exception which seems to me to be fatal. The claim was mostly for money and other things furnished to a nephew of John Sampson, who was a clerk in the defendants’ store. When the young man was sent to the defendants, his uncle requested them to allow him such compensation as was customary in similar cases, and added, that if anything farther was needed
I think, there must be a new trial; and the parties can make such application to the supreme court as they may think proper in relation to an amendment of the pleadings. If they desire to make an issue, to try the case as between the plaintiff in his representative character and the defendants, they can procure- an ■ amendment of the pleadings, which will enable them to do so.
— The note in question constituted the sole cause of action in the present suit. It was made after the death of the plaintiff’s testator, and would maintain an action either in the name of-the plaintiff as an individual, or as the executor of John Sampson, deceased. The suit was brought in the name of the
Under these circumstances, the defendants proposed to prove a set-off, of demands arising from services rendered by them, to the plaintiff’s testator, in his lifetime. This was objected to as incompetent, and the objection overruled by the referee, and the evidence admitted. The notice under which this offer was made, alleged an indebtedness on the part of the plaintiff to the defendants, *at the time of the commence- ^ # g ment of the suit. It is said, that the objection *- was too general; that it should have specified the ground of incompetency; there would be force in this suggestion, if the objection to the evidence could have been obviated before the referee. The pleadings of both parties present cross-demands, for and against Charles H. Merritt, as plaintiff; the evidence offered tended to prove a debt against John Sampson, deceased, in his lifetime, in favor of the defendants. The parties to the suit must, therefore, be changed, to render the evidence admissible; as this difficulty could not be obviated in any manner upon the hearing, a general objection was all that was necessary.
2. A witness had testified, that John Sampson, sen., the plaintiff’s testator, had told the defendants, in 1838, when his nephew entered their service as a clerk, to allow him the customary compensation, and if anything more was needed for his support, he would pay it himself. The witness was then shown an account from the books of the defendants, against the nephew, consisting of various cash items, and was asked, whether those items were proper for a young man so situated. The question was objected to as incompetent, and the objection overruled by the referee. The evidence was incompetent, in the first place, in calling for the opinion of
Judgment reversed, and new trial awarded
Bright v. Currie, 5 Sandf. 433.
Bonesteel v. Garlinghouse, 60 Barb. 338; Murray v. Church, 1 Hun 49 ; Leland v. Manning, 4 Ibid. 7.