Kerrigan v. Peters — 108 A.D. 292

Majority

p. 292

Frances Kerrigan, Respondent, v. George W. Peters and Others, as Executors, etc., of Edward B. Fellows, Late of the City of New York, Deceased, Appellants.

Headnote

Amendment of a complaint, making the action one against the defendants personally instead of as executors—^defense of the Statute of Limitations,, not considered.

. A motion made by the -plaintiff in an action a year and a half after the service of • the answer, during Which time the case has not been placed on the calendar, and neither party has made any move therein, to amend the summons and complaint by striking out after the names' of the defendants the words, “as executors of the last wilhand testament of Edward B. Fellows, late of the city of- New York, deceased,” may properly be granted, -but only upon payment by the plaintiff of the costs accruing up to the time of the amendment.

Upon an application for an order allowing such an amendment, the fact that the . Statute of Limitations may be a defense to the defendants, when sued as individuals, should not'be considered..

Appeal by the defendants, George W. Peters and others, as executors, etc.,' of Edward B. Fellows, late of the city of New York, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of March, 1905, permitting the amendment of the summons and complaint by striking' from the

p. 293

title thereof the words “ as executors of the last will and testament of Edward B. Fellows, late of the city of New York, deceased.”

George L. Shearer, for the appellants.

Odell D. ■ Tompkins, for the respondent;

This is an appeal from an order allowing an amendment of a summons and complaint by striking out, after the names of the defendants, the words “ as executors of the last will and testament of Edward B. Fellows, late of the city of New York, deceased.” The purpose of the amendment is to change the action from one against the defendants representatively to one against them individually.

The power of the court to grant such an amendment is fully sustained by Tighe v. Pope ( 16 Hun, 180 ) and Boyd v. U. S. Mortgage &Trust Co. ( 84 App. Div. 466 ; 94 id. 413), the latter case being in this court. We held there that the fact that the Statute of Limitations might run as a defense to the defendants individually was not to be considered. It is admitted by the appellants that this case is analogous to the Boyd case, but it is said that a distinction exists, which goes to the question of laches. In the Boyd case the motion was made to amend by striking out the, words “ as substituted trustee under the will,” and such motion was made just before the case was reached for trial on the calendar of the court. In the present case the plaintiff did nothing, the case was never put upon the calendar and it was not until a year and a half after the defendants’ answer was interposed that the plaintiff made the motion. The question of laches is not involved here. Neither party moved the case apparently, and the affidavit of the plaintiff’s attorney is in effect similar to that presented in the Boyd case. It had been held, in Schwab v. Cleveland ( 28 Hun, 458 ) that persons in charge of real estate in their representative capacity were liable in actions of negligence; but afterwards, in Keatings v. Stevenson ( 21 App. Div. 604 ), it was held that' trustees of an express trust in real estate, charged with the duty of keeping premises in repair, are, by virtue of the legal title vested in them, liable personally and not in their representative capacity.

p. 294

The order, however, permitting the amendment was made without costs. That was wrong, and costs should be allowed.

The" order should be modified by allowing the amendment, with costs of the action accrued to the time of the amendment, and requiring service''of the complaint as amended on the defendants’ attorney, and as modified affirmed, with ten dollars costs and disbursements to appellants. ■

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellants.