Herzog v. Marx — 58 Misc. 356

Majority

p. 356

Alexander Herzog, Plaintiff, v. Simon Marx et al., Defendants.

(Supreme Court, New York Special Term,

March, 1908.)

Headnote

Calendar — Right to go on calendar — Special Term calendar.

Cause of action — Character of cause of action — Legal or equitable.

An action by a creditor against his debtor’s next of kin, legatees, heirs or devisees for a judgment to be apportioned among them pursuant to the provisions of section 1839 of the Code of Civil Procedure is an equitable action and is properly placed upon the calendar of the Special Term of the Supreme Court for trial and should not be stricken therefrom.

Motion to strike the cause from the calendar.

p. 357

Frankenthaler & Sapinsky, for plaintiff.

Ezekiel Fixman, for defendants.

The demand of the complaint is for a money judgment to be apportioned among the defendants in proportion to the legacies or distributive shares received by them from the estate of a decedent. The plaintiff has noticed the trial for the equity side of the court, and the defendants move to strike the cause from the Special Term calendar. The action is based on the breach of a covenant of seizin which is essentially one at law. It might have been maintained at' law against the executor of the estate. But the Code permits suits against legatees, next of kin and the surviving husband or wife, and provides for an apportionment of the amount found to be due and a contribution by the parties defendant. A judgment awarding relief in such an action must be based upon the findings of the court, and not upon the verdict of a jury. The action is in equity and properly on the Special Term calendar. The motion will be denied, without prejudice to any application which may be made at the trial to have the questions upon which the plaintiff’s claim is founded tried before a jury.

Motion denied, without prejudice.