Herzog v. Marx — 110 N.Y.S. 1039

Majority

p. 1039

(58 Misc. Rep. 356.)

HERZOG v. MARX et al.

(Supreme Court, Special Term, New York County.

March, 1908.)

Headnote

Action—Legal ob Equitable.

An action by a creditor against his debtor’s next of kin and legatees and heirs, under Code Civ. Proc. § 1839, for a judgment to be apportioned among them, is an equitable action properly placed on the calendar of the Special Term of the Supreme Court.

[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 1, Action, §§ 12íL14d.]

Action by Alexander Herzog against Simon Marx and others. On motion to strike cause from calendar.

Denied.

FYankenthaler & Sapinsky, for plaintiff.

Ezekiel Eixman, 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 seisin, which is essentially one at law. It might have been maintained at law against the executor of the estate. But the Code (Code Civ. Proc. § 1839) 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.