#### Lea Gross, as Executrix, Etc., of Isaac Gross, Deceased, Respondent, *v.*Kalman Gross et al. (Impleaded with Lazarus Levy, as Executor, Etc., of Isaac Gross, Deceased), Appellants.

(Supreme Court, Appellate Term,

February, 1899.)

1. Executors — May sue as such, or individually, for goods of their testator sold by them- after his death.

Where executors sell goods, which were “ the property and part of the estate ” of their testator, they may maintain an action for the price either as executors or as individuals, although it is the better practice for them to sue in the latter capacity.

2. Same — Counterclaims against, arising before the testator’s death.

Counterclaims arising out of causes of action which accrued prior to the death of a testator cannot be interposed to an action brought by his executors upon a liability of his estate which was created after his death.

Gross v. Gross, 25 Misc. Rep. 297, affirmed.

This is an appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment of the Special Term, sustaining a demurrer to defendants’ counterclaims.

Wahle *&*Stone (Charles G. F. Wahle, of counsel), for appellants.

M. S. *&*I. S. Isaacs (Julius J. Frank and Julien M. Isaacs, of counsel), for respondent.

Leventritt, J.

It appears by the complaint that on the 24th day of April, 1896, one Isaac Gross died, leaving a will whereby the plaintiff and the defendant Lazarus Levy, were designated as executors, and that they subsequently qualified. It further appears that thereafter and on the 13th day of August, 1896, the executors sold and delivered to the defendants Ralmon Gross and Solomon J. Rosenbloom, certain goods, which were *(C*the property and part of the estate ” of the testator. These goods were not paid for upon demand and hence this action to recover the agreed value. Lazarus Levy having refused to join as coplaintiff, was made a defendant, but took no part in the litigation. The defendants, *386Gross and Rosenbloom, after pleading in effect a general denial, interposed three separate counterclaims, based upon demands, which arose prior to the date of the testator’s death, and in the amount of which they sought affirmative judgment. To each of these counterclaims the plaintiff demurred upon the ground that they were, upon the face, insufficient in law. The demurrer was sustained at the Special Term, and upon appeal to the General Term of the City Court, the judgment thereon was affirmed. From that affirmance this appeal is taken.

The defendants contend that the complaint does not set up facts sufficient to constitute a cause of action, and therefore, however defectively the counterclaims may be pleaded, they are not subject to demurrer. It is unquestionably true that in resisting the demurrer, the defendants may attack the complaint for insufficiency in view of the fact that they have not admitted the allegations assailed. Reeves v. Bushby, 25 Misc. Rep. 226; Village of Little Falls v. Cobb, 80 Hun, 20; Mercein v. Smith, 2 Hill, 210; Morey v. Ford, 32 Hun, 446.; Wyman v. Mitchell, 1 Cow. 316.

*As*the plaintiff’s demurrer searches the whole record, the court must consider it, and give judgment against the party who committed the first error in pleading.

The defendants urge that the sale upon which the suit is based, having been made after the death of the testator, the plaintiff cannot, as executrix, maintain an action against them, and that their liability to Lea Gross and Lazarus Levy can be established only in ' an action instituted by them personally. In other words, that the debt does not belong to them in their representative capacity.

While it would have been better pleading to have declared upon the plaintiff’s individual right, we cannot, under the authorities (Thompson v. Whitmarsh, 100 N. Y. 35), reject the complaint.

Under the common law, where the cause of action accrued *after*the death of the testator, the plaintiff could, at his option, declare either in his own name or in his representative character (8 Ency. Pl. & Pr. 658; Merritt v. Seaman, 6 Barb. 330; affirmed, 6 N. Y. 168; Mercein v. Smith, 2 Hill, 210; Fry v. Evans, 8 Wend. 530; Biddle v. Wilkins, 1 Pet. 686; Kane v. Paul, 14 id. 33), the test being will the recovery inure to the estate? Fry v. Evans, *supra.*

The common-law rule was changed by the sections of the Code, which provide that an action by an executor or administrator, upon a cause of action, belonging to him in his representative capacity, must be brought by him in that capacity, and that all actions must *387be prosecuted in the name of the real party in interest. Code of Civil Procedure, §§ 1814 and 449; Hone v. De Peyster, 106 N. Y. 646. The effect of this change was discussed in Thompson v. Whitmarsh, *supra,*and it was held to apply to “ the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor or administrator has taken a new security or evidence of debt. In these cases, before the Code, the action might be in the individual or representative name, but now must be in the latter.”

It thus appears that the change resulting from those sections does not affect the form of action to be adopted upon demands created *after*the decease of a testator. Buckland v. Gallup, 105 N. Y. 453; Bingham v. Marine Nat. Bank, 41 Hun, 377; affirmed, 112 N. Y. 661.

In Bingham v. Marine Nat. Bank, 41 Hun, 377, where the cause of action arose upon a certificate of deposit, issued upon a transaction had with assets of the estate, of which the plaintiffs were administrators, the General Term of the Supreme Court, in this department, said:

> *“*The. plaintiffs were at liberty, therefore, either to bring this action in their own names as individuals, or as representatives of this estate, and as the facts for either action are fully stated and set forth in the complaint, they were here empowered to maintain the action, if it could be sustained by them, either as individuals or as personal representatives.”

In affirming the judgment in that case, the Court of Appeals adopts the following language:

> *“*The contract represented by it (the certificate) came from their dealing with money of the estate, and might have been enforced in their names as individuals, but by seeking to do so; with the addition of their representative character, they lose no right and impose no hardship upon, as they impair no remedy of, the defendant. * * . * However sued, the money recovered would belong to the estate, and whether the description of the person be rejected as surplusage, or retained, could in no manner be important.” Bingham v. Marine Nat. Bank, 112 N. Y. 663.

Where the complaint shows a cause of action in the plaintiff, in Ms individual character, descriptive words added, indicating representative character, have been rejected and the action allowed to stand as one in the individual capacity of the plaintiff (Litchfield v. *388Flint, 104 N. Y. 543); the only consequence being that, in the event of failure in the action, the plaintiffs, despite the allegation of representative capacity, would be personally chargeable with the costs. Buckland v. Gallup, 105 N. Y. 453.

Therefore, whether we reject as surplusage, or retain the descriptive words, the complaint is sufficient, being based upon a transaction subsequent to the death of the testator and not upon a debt due to Mm or resulting from any contract made with him.

We are, therefore, brought to a consideration of the defendants’ counterclaims. It cannot be questioned that they are bad in law. They involved causes of action which had accrued prior to the testator’s death and are not properly the subject of counterclaim in an action to recover upon a liability created thereafter.

There is a long line of uniform authorities sustaining that proposition. Root v. Taylor, 20 Johns. 137; Mercein v. Smith, 2 Hill, 210; Merritt v. Seaman, 6 N. Y. 168; Patterson v. Patterson, 59 id. 574; Thompson v. Whitmarsh, 100 id. 35.

The underlying principle is that the allowance of such counterclaims would, inequitably, defeat the *pro rata*distribution, among creditors, of the assets of the decedent’s estate.

The judgment of the General Term of the court below was, therefore, right and must be affirmed, with costs.

Freedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to' the respondent.