Opinion
May, 1897.
H. Judd Ward, for plaintiffs.
Long Maxwell, for defendants.
The defendants demur to each of two alleged causes of action stated in the complaint on the ground that they do not state facts sufficient to constitute a cause of action.
The defendants are sued personally and as executor and executrix, respectively, of the last will and testament of Van Rensselaer Powell, deceased. In the complaint, after an allegation that the plaintiffs are copartners, it is alleged that on the 22d day of October, 1892, the defendants were respectively appointed executor and executrix of the last will and testament of Van Rensselaer Powell, deceased, and have ever since been and acted as such; that since the death of Powell and since their appointment as executor and executrix the defendants have conducted and managed a business in Troy and purchased goods and merchandise and made and entered upon and into contracts both executed and executory apparently as said executor and executrix, and in the name and style of the estate of Van Rensselaer Powell; that on the 16th day of October, 1896, the defendants "made in their names as said executor and as said executrix and the estate of Van Rensselaer Powell their promissory note in writing, of which the following is a copy." Then follows a copy of the note, dated on that day, which recites that it was made for value received, and which is signed "George B. Powell, Ex., Helen M. Saxe, Ex., estate of V.R. Powell." It is then alleged that the note was delivered to the plaintiffs (the payees therein named), and that there is due to the plaintiffs from the defendants thereon a sum specified, for which judgment is demanded.
The complaint also alleges in the same way a second cause of action upon another note of the same date and signed in the same way.
It is well settled that a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually. Austin v. Munro, 47 N.Y. 360; Willis v. Sharp, 113 id. 586.
It clearly appears from the complaint that the notes sued upon bear date long after the issuing of letters testamentary to the defendants and consequently long after the death of the testator.
Nor will the adding to the signature the name of office as executor in such a case affect the individual liability. Schmittler v. Simon, 101 N.Y. 554.
The complaint in this case, therefore, states a good cause of action as against the defendants individually, under section 534 of the Code of Civil Procedure, which provides that where a cause of action is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon from the adverse party a specified sum which he claims.
It is unnecessary, therefore, to consider whether or not the complaint states a good cause of action against the defendants in their representative capacity as executors, for the reason that if the complaint shows that the plaintiff is entitled to any relief upon the facts stated the demurrer cannot be sustained. Marie v. Garrison, 83 N.Y. 23.
The demurrer is, therefore, overruled, with leave to defendants to withdraw the same and answer over on payment of costs of the demurrer.
Ordered accordingly.