Opinion
Argued April 24, 1884
Decided May 6, 1884
S.D. Halliday for appellant.
Merritt King for respondent.
Notwithstanding the general rule that an appellate court is not to look beyond the order to ascertain the ground of judgment, it may do so when the terms of the order are ambiguous, or when the order itself refers to the opinion. ( Tolman v. S.B. N.Y.R.R. Co., 92 N.Y. 353.) We find it there stated that the referee should have found that the services were not rendered by the plaintiff on her own account, but on account of her husband, and that the indebtedness did not accrue to her, and that the findings are erroneous so far as they imply that there was any contract with the plaintiff. No fault is found with the estimate put upon the value of the services, or the amount actually due from the estate; but the ground of the decision of the referee, and its affirmance by the Supreme Court, seems to be that the plaintiff's husband, being executor, could only collect, or be allowed his claim by proceedings under the statutes providing for such a case, and that the plaintiff, as his assignee, could have no other right. This also is the principal contention on the part of the respondent upon this appeal.
We are unable to agree in this view. If Philip (the husband) had not qualified, Sylvester would have been sole executor; and then, of course, his remedy for the debt due him would have been the same as that of any other creditor. Philip, the creditor, could have sued Sylvester, the executor, in the Supreme Court. Becoming executor, he forfeited no right as creditor, but assumed another character. He could not as creditor sue himself as executor. Before the statute, however, he could have paid himself, but since the statute he could not do so. (2 R.S. 88, § 33.) A remedy was, however, provided by statute. Upon citation duly issued and served on parties interested he might have a hearing, and his claim, if just, might be allowed by the surrogate. (Ib., and also New Code, § 2739.)
The plaintiff, however, is under no disability. As Philips in the case supposed, could have sued Sylvester, she could sue both, and either could defend. No reason, therefore, is perceived why the doors of the Supreme Court should be closed against her. She is the real party in interest — has the legal as well as the equitable right of her assignor, whose presence as party plaintiff is in no degree necessary to a complete determination of all the questions involved. She is personally qualified to sue in any court, and cannot be defeated because the person under whom she claims would, if he had sued as plaintiff, have been disqualified by reason of his relation to the parties named as defendants. It is immaterial, therefore, to inquire whether the debt accrued to the plaintiff by contract with the testator — she might have contracted with him — or by assignment from Philip Snyder through Barber. In either view the judgment is wrong. It should be reversed and a new trial granted, with costs to abide the event.
All concur, except FINCH, J., not voting.
Judgment reversed.