#### Electus B. Litchfeld, Executor of the estate of H. Marie Litchfield, deceased, Resp’t; *v.*Charles R. Flint, Appl’t.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Bills and notes — Payee — What wobds aee descbiptio pebsosl®.

A note which promised to pay E. B. Litchfield “ executor of the estate of H. Maria Litchfield deceased ” is payable to him individually, the words quoted are mere *descriptio personae.*

2. Pleading — Name of paety — Surplusage.

In the title of this action after the word *“*Litchfield ” appear the words “ executor of the last will and testament of H. Maria Litchfield deceased.” In such a case when the complaint shows a cause of action in favor of plaintiff, not in his representative but in his individual character, the descriptive words may be rejected.

3. Same — Cause of action.

The complaint in this action alleged that a certain note payable to the plaintiff was by him transferred to one Foote. That the defendant promised to pay this note for a valuable consideration furnished by plaintiff. That it was not paid and was protested for non-payment. That Foote thereafter assigned it to plaintiff. *Held,*that there was a cause of action stated. That by virtue of plaintiff being indorser upon the note he was under such a legal obligation to Foote as to create a privity by substitution with the promisor. Also that plaintiff independently of the above could enforce the promise made to him to pay the note.

Appeal from a judgment of the supreme court, general term, second department, reversing a judgment of the special term overruling tbe demurrer to tbe complaint on tbe ground that it did not state a cause of action.

*J. W. Gilbert,*for appl’t. *B. F.*Tracy, for resp’t.

1

 Reversing 37 Hun, 643. *mem.*

Earl, J.

We' are of opinion that tbe complaint states a good cause of action, and that tbe demurrer was not, therefore, well taken.

While tbe note mentioned in tbe complaint contains a promise to pay E. B. Litchfield, “ executor of the estate of H. Maria Litchfield, deceased,” tbe words quoted are mere *descript-io personae.*There is nothing in tbe complaint showing that tbe loan was made by him as executor, and in no other capacity ; and upon the facts alleged in the complaint, if Litchfield had desired to commence suit directly upon the note against the maker thereof, he would have been obliged to commence it in his individual name, and in that capacity he could have recovered. Pe*ck*v. Mallams, 10 N. Y. 509.

So, too, although in the title of this action, after the word “ Litchfield,” the words, “ executor of the last will and testament of H. Maria Litchfield, deceased,” appear, yet the action is the individual action of Electus B. Litchfield. The whole body of the complaint shows an action in his favor, to enforce *801an agreement made by him individually with tbe defendant for tbe payment of tbe note given to and held by bim individually. In such a case, wben the complaint shows a cause of action in favor of tbe plaintiff, not in bis representative, but in bis individual, character, the descriptive words may be rejected, leaving the action to stand as one in the individual capacity of tbe plaintiff. *Merritt*v. *Seaman,*6 N. Y., 168; *Stilwell v. Carpenter,*62 N. Y., 639; *Beers*v. *Shannon,*73 N. Y., 292; *Thompson*v. *Whitmarsh,*100 N. Y. 35.

We agree with tbe general term that this is not an action to enforce a trust, but simply to enforce the agreement of tbe defendant to pay the note held by tbe plaintiff which is set out in the complaint. It is quite clear that under tbe authority of *Lawrence*v. *Fox,*20 N. Y., 268; *Barlow*v. *Myers,*64 N. Y., 41; *Vrooman*v. *Turner,*69 N. Y., 280; and other like cases, — Foote, • if he had continued to hold the note, could, upon the facts alleged in the complaint, have compelled its payment by the defendant. His agreement to pay the note to Foote was founded upon an ample consideration passing to him from the plaintiff. At the same time the plaintiff was under a legal obligation or duty to Foote, by virtue of his indorsement upon the note which he had transferred to him, and his interest and obligation consequent upon his indorsement bring the case precisely within the rule laid down in *Vrooman*v. *Turner, supra,*in the following language : “ A legal obligation or duty of the promisee to him [the third party] will so connect him with the transaction as to be a substitute for any privit} with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor.”

It is true that the complaint does not very distinctly aver the indorsement by the plaintiff of the note which was held by Foote at the date of the agreement. But the note was payable to plaintiff’s order, and the complaint alleges that it was trans-' ferred to Foote, which, in the case of such a note, would imply its indorsement. It avers that payment of the note was demanded, and that it was protested for non-payment, and that notice of protest was duly served upon plaintiff. It is also alleged that the agreement was entered into for' the purpose, among other things, of making certain provision for the payment of the note, and the indebtedness of the Kings County Central Railroad Company evidenced thereby, and of indemnifying the plaintiff, as executor, from liability thereon. From all this language, we think it can be inferred that the plaintiff was the indorser of the note while it was in the hands of Foote ; and therefore the promise of the defendant became available to Foote, and the assignment and transfer of the note to the *802plaintiff enabled him, as such assignee, standing in the shoes of Foote, to enforce the agreement.

But, even if this were not so, the conclusion would still be reached that the plaintiff could enforce payment of the note. The defendant promised to pay this note upon ample consideration furnished by the plaintiff. He thus became bound to some one to pay it. If he did not become bound to Foote, he certainly did to the plaintiff; and the plaintiff, having becomé possessed of the note, cannot simply, as assignee of Foote, but as a party to the agreement, enforce payment of the note. The plaintiff holds, not only all the rights, if any, Foote had under that agreement, but all the rights which he had thereunder as a party thereto; and there can be no doubt that he is in a posi tion to enforce the promise the defendant made to him to pay the note. Therefore, the plaintiff having become owner and holder of the note, having procured the consent of the Kings County Central Railroad Company to its payment by the defendant, and having tendered to him the 16 bonds to which he was entitled under the agreement, and the enterprise mentioned in the agreement having been closed up and terminated, the defendant having ample funds for the payment of the note, we see no reason to doubt that the complaint sets forth a sufficient cause of action, and that the demurrer should not have been sustained.

The judgment of the general term should therefore be reversed, and that of the special term overruling the demurrer affirmed, and the defendant should have leave to withdraw his demurrer, and serve an answer within 80 days, upon payment to the plaintiff of all the costs since the service of the demurrer.

All concur.