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Kley v. Higgins

59 A.D. 581 Court N.Y. App. Div. English

Delivered by Rumsey, J.:

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p. 581
Anna C. Kley, Respondent, v. A. Hamilton Higgins, Executor, and Mary A. Lynch, Executrix of John W. Healy, Deceased, Appellants.

Headnote

Complaint against executors — when defective in not alleging that they were such— consideration sufficient to sustain a contract—an order overruling a demurrer is not appealable.
In an action brought to charge the defendants as executors of John W. Healy upon a contract made by Healy in his lifetime, the defendants were described in the title as executor and executrix of Healy. The complaint alleged that Healy died leaving a last will and testament, which was admitted to probate, but there was no allegation that any person was nominated as executor in that
p. 582
will, or that letters testamentary were issued to the defendants, or any one else, -or that the defendants ever qualified as executors.. The complaint, however, -did allege that the plaintiff filed her claim with the defendants as executor and -executrix, hut that the same was rejected. It did not appear what claim was bo filed, or whether it was filed with the defendants as executor and executrix of Héaly.
Held, that there was. nothing in the complaint which would warrant the inference that the defendants occupied the representative character in which they were sought to he charged.
The complaint alleged that the contract sued upon provided that Healy would pay to the plaintiff a certain ■ sum of money, in consideration of the dismissal of an appeal which had been taken by her, or if the judgment appealed from . should be affirmed. The plaintiff then alleged that her attorneys, having . refused to consent to the dismissal of the appeal, she, at the request df Healy, retained counsel to argue the appeal for him; that the judgment was affirmed, but that Healy refused to pay her the money.
Semble, that Healy’s agreement to pay was founded upon a sufficient consideration. Ho appeal lies from an order overruling a demurrer. •
Appeal by the defendants, A. Hamilton Higgins, executor, and Mary A. Lynch, executrix of J ohn W. Healy, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the offibe of the clerk of the county' of New York on the 17th day of January, 1901, upon the decision of the court rendered after a trial at the New York Special Term overruling a demurrer to the complaint, and also from an order entered in said clerk’s office on the 17th day of January, 1901, overruling said demurrer. •
Eugene Howell Daly, for the appellants.
William H. Newman, for the respondent.

There is no authority for an appeal from an order, sustaining or overruling a demurrer. So much, therefore, of the appeal as is taken from the order must" be dismissed, with ten dollars costs.

Two objections are taken to the complaint! In the first place it is alleged that it appears that there was no consideration for the agreement upon which the action is brought. This objection is not well taken. The contract was that Healy would pay to the plaintiff a certain sum of money in consideration of the dismissal of an appeal which had been taken by her, or if the judgment appealed from

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should be affirmed. The plaintiff then alleges that her attorneys, having refused to consent to the dismissal of the appeal, she, at the request of Healy, retained counsel to argue the appeal for him, the. result being that the judgment was affirmed, but that Healy refused to pay her the money. This is clearly a sufficient consideration for the contract upon which the action is founded.

But the defendants insist upon a technical objection to this complaint, which is well taken, and because of which we must reverse this judgment and sustain the demurrer. The action is brought upon a contract made by John W. Healy in. his lifetime. The defendants are described in the title of the action as executor and executrix of Healy. It is alleged in the complaint that Healy died having made a last will and testament which was admitted to probate, but there is no allegation in the complaint that any person was nominated as executor in that will, nor is there any allegation that letters testamentary were issued to the defendants or any one else, or that the defendants ever qualified as executors. As they are sought to be charged in this action upon the contract made with Healy, it is absolutely essential that somewhere in the complaint facts should be stated from which it can be inferred that they were his personal representatives. Of course, it is not always necessary that the allegations of the complaint as to the representative character of the defendants should be direct and positive, but it is certainly necessary, if the allegations are not made in that way, that the frame and averments and scope of the complaint must be such as to fix upon the defendants such a character. But nothing of that kind is found in this pleading. It is said that the plaintiff filed with the defendants, as executor and executrix, her claim duly verified, which was rejected, but what claim does not appear; nor is there any suggestion that'the claim was filed with the defendants as executor and executrix of Healy, and when it appeared, as it does, that the claim was rejected, that fact destroyed any inference that the persons with whom the claim was filed conceded that they were the personal representatives of Healy. The case is not within that of Beers v. Shannon ( 73 N. Y. 292 ) or Stilwell v. Carpenter ( 2 Abb. N.

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ants occupied the representative character in which they are sought to be charged. For that reason the judgmént overruling the demurrer must be reversed, with costs, and judgment entered sustaining: the demurrer, with costs, with leave to the plaintiff to amend the complaint upon payment of the costs in the court below and in this, court.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred..

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this, court and in thé court below.

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