#### Anna C. Kley, Plaintiff, *v.*A. Hamilton Higgins et al., Defendants.

(Supreme Court, New York Special Term,

December, 1900.)

1. Consideration — forbearance of right to appeal — Complaint.

A complaint against executors which alleges that, while an action between the plaintiff as appellant and their testator as respondent was pending in the Court of Appeals, the plaintiff, in spite of the refusal of her attorney of record to consent thereto, agreed in writing to permit her appeal to be dismissed and the judgment affirmed upon payment by the testator of an agreed sum of money, as soon as he had sold certain land, and that, although he sold the land, he had never paid her the money, is not demurrable for failing to state a consideration for his promise, as her forbearance of her legal right to appeal affords a sufficient consideration.

Where the plaintiff performed her promise as far as she could, the court considered that the fact that, owing to the refusal of her attorney to consent to the dismissal, the judgment was affirmed after argument and without reference to her consent, could not be considered on demurrer; and, if matter of defense, must be set up by answer.

3. Complaint against executors — Description of defendants and form of demand of judgment.

Where the complaint shows that the defendants are sued as executors, it is not material that the word “as” has not been inserted, as to each, in the caption, before the word “executor”; nor is it material that judgment i« not demanded against them in their representative capacity, provided the complaint shows that the plaintiff is entitled to any relief whatever.

Demurrer to complaint.

Wm. H. Newman, for plaintiff.

Eugene F. Daly, for defendants.

Lawrence, J.

It is alleged in the complaint that one John W. Healy died in the city of New York in September, 1898, leaving *368a last will and testament which was duly admitted to prohate by the surrogate of the county of New York in the month of January, 1899; that at the time of his death the deceased was indebted to the plaintiff in the sum of $4,000; that in the month of July the plaintiff filed with the defendants, as executor and executrix, her claim duly verified in the amount above stated, and that subsequently, in September, 1900, the said defendants served a notice on plaintiff in writing rejecting the claim; that an action was pending between the plaintiff and John W. Healy, in which the plaintiff sought to recover the sum of $4,000. It is also alleged that the said Healy, the defendant in said action, sought the plaintiff and entered into an agreement, with her by which he agreed to pay her the said sum of $4,000 if the plaintiff would consent that an appeal which was pending in the action brought by her against said Healy to recover the said sum should be dismissed, and that the judgment should be affirmed; and if in fact the appeal should be dismissed and judgment affirmed he would pay the plaintiff the said sum of $4,000, which was fixed upon as a just amount between said Healy and the plaintiff; that the plaintiff did consent, in writing, that the said judgment should be affirmed and withdrew all opposition to its affirmance, and, in pursuance of the agreement, went to the city of Albany, in which the Court of Appeals was in session, and retained counsel to argue the appeal on behalf of said John W. Healy, the attorney for the plaintiff having refused to consent to the dismissal of the appeal or the affirmance of the judgment; that after-wards the said defendant promised to carry out the said agreement and pay the said sum of $4,000 as soon as he received the money from the sale of a lot of land owned by him; that he afterwards did receive the sum of $20,000, as he informed the plaintiff, and that he would make good to her his promise theretofore made. It is also alleged that a few days after the receipt of said money, said Healy was taken suddenly ill and died without fulfilling his promise. To this complaint the defendants demur on the ground that it does not state facts sufficient to constitute a cause of action. Hnder this demurrer the defendants’ counsel- argues that the promise set out in the complaint made by the deceased was without consideration, for the reason, among others, that it appears that the attorney for the plaintiff refused to consent to the dismissal, which rendered the consent a nullity, and that it appears that the judgment was affirmed after argument without reference to the consent. If the consent *369was given without the consent of defendants’ attorney, it does not seem to me that such a defense would he available to Healy if he were alive, because, if any wrong were done to the plaintiff’s attorney, Healy was a party to that wrong and could not take advantage of his own wrong; and the defendants, as executors, could not set up as an objection that which could not have been set up in that respect by Healy. If any grounds exist which would have authorized or justified Healy to have set up the failure of the plaintiff’s attorney to agree to the consent withdrawing the appeal, those facts must be set up by answer and cannot be regarded upon this demurrer. So far as the general question of want of consideration is concerned, the ease of Hector v. Teed, 120 N. Y. 583, seems to me to be in point. In that case it was held that it is not necessary that the person to whom a valuable consideration for a promise on his part moves should be benefited to make the promise binding. It is sufficient if the person from whom it moves is in a legal sense injured. Also that the injury may consist of the compromise of a disputed claim or forbearance to exercise a legal right, the alteration in position being regarded as a detriment that forms a consideration independent of the actual value of the right forborne. In that case it appeared that a person had died leaving a will, which defendant, as executor, presented for probate*.*Objections were filed by Teed, the only heir-at-law and next of kin of L., the testator. T. agreed to withdraw said objections, if defendant would pay to plaintiff $500,'as provided in an instrument to be executed by him. Said instrument was duly executed by defendant and delivered to plaintiff. By its terms, for value received, the defendant promised to pay to plaintiff $500 on the understanding that plaintiff should appropriate the interest thereof to the improvement, adornment and -caretaking of the churchyard of plaintiff’s church, but that payment should not be exacted until after the death of T. T. thereupon withdrew his objections and the will was admitted to probate. Neither plaintiff nor defendant had any interest in the estate of L.; but one objection made by T. to the probate of the will was that the testator had agreed to leave $500 to the plaintiff. In an action upon said agreement brought after the death of T., held that- the withdrawal of objections by T. at defendant’s special request was the forbearance of a legal right and constituted a consideration sufficient to support his promise, although he was to receive no benefit. That, as the agreement

*370recited a consideration, the burden of proof was upon the defendant to show that there was none, and if such a claim was based on the ground that the testator left no property, it was for him to prove it.” In this case the facts stated in the complaint are, of course, admitted by the demurrer, and one of those facts being that the plaintiff did consent, in writing, to withdraw the appeal, and that the said judgment should be affirmed and carried out, such agreement on her part and such action on the part of the plaintiff under the case last cited constituted a good consideration for the promise alleged to have been made by Ilealy. It is also argued on behalf of the defendants that they are not sued as executor and executrix, it being argued that as the word “ as ” has not been inserted after the names in the caption of the complaint, so that it would read “A. Hamilton Higgins as executor, and Mary A. Lynch, as executrix,” that the action is not brought against the defendants as executor and executrix, and that the term executor and executrix is merely descriptive. A similar point was taken in the case of Beers v. Shannon, 73 N. Y. 292-297, and, in discussing it, Folger, J., in delivering the opinion of the court, stated: *“*The first point made by the defendant is this: That the action is not brought by the plaintiff in a character representative of the deceased obligee. This is based mainly, upon the omission of the word ‘ as ’ between the name of the plaintiff John L. Beers, and the description of him, ‘ executor of, &c., of John Beers, deceased,’ in the title of the summons, and in the body of the summons, and in the title to the complaint. It is true, that without that word, in that position, it has been sometimes held that the addition to the name of the party is but a *descriptio personae,*and does not give to him other than a personal or individual character in the action. But it has been held, on the other band, that though there be nought in the title of the process or the complaint to give a representative character to the plaintiff, that the frame, and averments and scope of the complaint may be such as to affix to him such character and standing in the litigation. Stilwell v. Carpenter, 62 N. Y. 639; 2 Abb. N. C. 238. In the case in hand, the averments of the complaint are such, that the defendant had full notice of the questions to be tried; that there was a definite issue presented for trial; that the judgment to be recovered might show what was determined by it; and that any other question, dependent upon the character in which the plaintiff sued, could be readily pre*371sented. It was plain from the complaint that the cause of action, if any, devolved upon the plaintiff, as the representative of the deceased obligee, by the creation of a representative relation by the will.” In the case at bar it is stated in paragraph 3 of the complaint that the plaintiff filed her claim with the defendants as executor and executrix, duly verified, and that the defendants served on this plaintiff a notice in writing disputing and rejecting the said claim and refusing to pay the same. Under the decision of Beers v. Shannon, *supra,*this allegation is sufficient to notify the defendants that they are sued in their capacity as executor and executrix of the last will and testament of Healy, deceased, such will being referred to in the first paragraph of the complaint. The criticism that the complaint does not demand judgment against the defendants in their representative capacity I do not think is well founded, for the reason that if it appears to the court upon an inspection of the complaint that the plaintiff is entitled to any relief whatever, the complaint must be regarded as stating a cause of action irrespective of the demand for judgment contained in the complaint. Judgment will, therefore, be rendered in favor of the plaintiff, overruling the demurrer, with costs, with leave to the defendants to answer over upon payment of costs.

Demurrer overruled, with costs, with leave to defendants to answer over upon payment of costs.