23 N.Y.S. 52 | N.Y. Sup. Ct. | 1893
This action is brought against Mary Naughton individually, and as administratrix of the goods, etc., of Thomas J. Naughton, deceased. The complaint alleges the death of Thomas J. Naughton, and the issuance of letters of administration upon his estate to the defendant, and her qualification; that the plaintiff is an undertaker, and at the request of the defendant furnished casket, hearse, carriages, and other necessaries for the funeral of deceased, which services and material were reasonably worth the sum of $376.90; and that the whole of said sum was due, and judgment was demanded therefor. The defendant demurred to the complaint upon three separate and distinct grounds: First, that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action; second, that in the complaint two causes of action had been improperly united, to wit, an action against the defendant, Mary Naughton, individually, and an action against her as administratrix; third, that the complaint did not state facts sufficient to constitute a cause of action to charge the defendant as administratrix. The court below sustained the demurrer as to the second and third grounds, and an interlocutory judgment was thereupon entered, from which this appeal is taken.
It is not claimed upon this appeal that the complaint does not state a good cause of action as against the defendant individually, but it is urged that there is no misjoinder of causes of action, for the reason that the facts stated in the complaint constituted but one cause of action; and that, having failed to sustain the demurrer on the first ground, costs should not have been awarded against the appellant. In the consideration of these questions it is necessary to refer to section 1815 of the Code, because cases may exist where an action is brought for but one cause of action in which a person may be sued both in an individual and in a representative capacity. This section, so far as applicable to the case at bar, is as follows:
“An action may be brought against, an executor or administrator personally, and also in his representative capacity, in either of the fcBowing cases: First, 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.”
A complaint may therefore contain a cause of action against an executor or administrator personally and in his representative capacity, without there being any misjoinder of causes of action. Consequently the court erred in sustaining the demurrer upon the ground of misjoinder of causes of action. But upon an examination of the complaint it will be seen that no cause of action whatever is alleged against the defendant in a representative capacity. She is not liable in her representative capacity for debts incurred subsequent to the death of the deceased, even though they may be incurred in respect to the administration of the estate, and although
