Opinion
December, 1912.
Fred V. Mayforth, for appellants.
F.H. Reuman, for respondents.
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 A.D. 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.
In 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 be 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 be able to set forth a good cause of action against these defendants.
Judgment should, therefore, be 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.