#### Herbert G. Miles and Roland C. Miles, Respondents, *v.*Matilda Weisbecker, Charles Weisbecker and Arthur Weisbecker, as Executrix and Executors of the Last Will and Testament of Charles Weisbecker, Deceased, Appellants.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Municipal Courts — Municipal Court of city of New York — jurisdiction — pleading.

An action on a contract made with an executor which, if excep-_ tional circumstances are alleged in the complaint, is sufficient to *370sustain an action against tlie estate is an equitable action of which the Municipal Court of the city of New York has no jurisdiction.

A complaint against executors in their representative capacity, which seeks to hold the estate upon a contract made with the executors, is demurrable.

The judgment entered on an order overruling the demurrer to said complaint is not a default judgment, and an appeal lies therefrom.

Appeal by the defendants from an order of the Municipal Court of the city of ¡New York, borough of Manhattan, seventh district, denying a motion of the defendants to open their default for failure to answer after their demurrer to the complaint had been overruled, and also from a judgment of the same court rendered in favor of the plaintiffs entered upon an order overruling said demurrer.

Fred Y. Mayforth, for appellants.

F. H. Eeuman, for respondents.

Lehman, J.

The plaintiffs have brought an action against the defendants in their- representative capacity for goods sold and delivered to the defendants. The defendants demurred to the complaint. The demurrer was overruled, with leave to plead over. The defendants failed or refused to plead over, and final judgment was entered upon the order overruling the demurrer. The defendants then appealed from the order and judgment. The final judgment is not a default judgment, and an appeal lies from that judgment. Furniss v. Furniss, 148 App. Div. 217.

The complaint seeks to hold the estate of the decedent upon a contract made with his executors. Executors have no power to bind the estate in the absence of special circumstances by any executory promise, although made in the interest and for the benefit of the estate, if made upon a new and independent consideration.

*“*To the general rule there are exceptions, and an equitable action can be maintained against the estate on behalf of a creditor.” O’Brien v. Jackson, 167 N. Y. 31.

*371In this case the complaint does not set forth exceptional circumstances sufficient to sustain an action against the estate, but even if the complaint did set forth such circumstances, the demurrer would he good, for the Municipal Court has no jurisdiction over equitable actions. All the cases cited by the plaintiffs, where the court held that an action could be maintained against the estate, were, in fact, equitable actions. It may well be that, upon proper motion, the court below can give leave to amend the summons and complaint by striking out from the names of the defendants the descriptions of their representative capacity. Boyd v. United States Mortgage & Trust Co., 187 N. Y. 262. Until such a motion has, however, been granted, the plaintiffs will not he able to set forth a good cause of action against these defendants.

Judgment should, therefore, he reversed, with costs, and the demurrer sustained with appropriate costs in the court below, with leave to the plaintiffs to serve an amended complaint within six days upon payment of taxable costs.

Appeals from orders dismissed, without costs.

Page and Hotchkiss, JJ., concur.

Appeals dismissed, without costs.