9 How. Pr. 251 | N.Y. Sup. Ct. | 1853
If it is necessary or proper for a plaintiff who sues as executor or administrator, to make proferí of the letters testamentary, or of administration, which, I incline to think, the practice under the Code does not require, the omission to do so is not, in my opinion, a ground of demurrer, pro
Under the former practice, when such profert was required, it could only be taken advantage of on special demurrer, and when the pleading contained the profert, oyer was rarely in practice given, unless demanded. In the present case the fact that the plaintiff is executor, &c., is distinctly alleged, and that, in my opinion, is sufficient. This disposes of the first and second specifications of causes of demurrer.
The third and fourth specifications are equally unfounded. The most that can be said against the complaint is, that it is double. Duplicity is no longer a ground of demurrer to a complaint. The only remedy of the defendant in such case is by motion to strike out, or that the plaintiff be compelled to elect. I am unable to perceive any objection to uniting the various items mentioned in the complaint in one action; whether they could all be united in one count or statement of a cause of action, is not the question to be considered on the demurrer. It is urged by the defendant’s counsel that causes of action due to the plaintiff in his character as executor are united with one due to him in his individual capacity, or in his own right. That one of the items is a note of hand payable to the plaintiff, which shows it is due to him in his own right. But this does not necessarily follow. Indeed, the complaint itself shows the contrary. The note, although to the plaintiff, if given for a debt due to the estate of the testator, could be declared on by the plaintiff formerly, either in his individual or representative character. In this case, the complaint alleges that the several sums of money mentioned were received by the defendant upon and for the demands, property and choses in action, which belonged to the testator. If any portion of the complaint is uncertain or indefinite, so that the charge is not apparent, the court has power on motion to order it to be made definite and certain, by amendment, § 160.
The plaintiff is entitled to judgment on the demurrer, the defendant to have leave to answer on payment of costs.
