Gross v. Gross

This is an action for goods sold and delivered, brought against Kalman Gross and William J. Eosenbloom, doing business in the city of New York under the firm name and style of K. Gross & Eosenbloom. The complaint alleges that on the 24th day of April, 1896, one Isaac Gross died, leaving a will, wherein the plaintiff and the defendant Lazarus Levy were nominated as executors, and that the will was probated, and letters testamentary issued to the plaintiff and the defendant Lazarus Levy; that on or about the 13th day of August, 1896, the plaintiff and the defendant Lazarus Levy, as

The action was, we think, properly brought by the plaintiff, and it matters not whether the accompanying words in the title, “as executrix,” etc., were included or dispensed with, if it appeared from the pleading itself that the cause of the action was an individual liability existing in favor of the plaintiff, for, when the complaint shows a cause of action in favor of the plaintiff, not in his representative but in his individual character, the descriptive words may be rejected, leaving the action to stand as one in the individual capacity of the defendant. Earl, J., in Litchfield v. Flint, 104 N. Y. 550 , 11 N. E. 58 . The only difference would be that, in the event of suing as executor when he might have brought suit in his individual capacity, he would be personally chargeable with costs. Buckland v. Gallup, 105 N. Y. 453 , 11 N. E. 843 . But with regard to the defenses interposed the case is somewhat different. The counterclaims interposed were of causes of action which had accrued prior to the testator’s death, and were not properly the subject of counterclaim in an action brought to recover upon a liability created after the happening of that event. And the reason for this is apparent when we consider the relation which a creditor bears to the assets of an estate. The executor is charged with the duty of collecting the assets of the estate, and of converting the same into money for the purpose of paying creditors. If a creditor who has incurred an obligation to the estate after the death of the testator might be permitted to offset the same with an obligation in his favor owing prior to the death of the testator, the result of such an arrangement might be to impoverish the estate for his own benefit, and leave other creditors in his class without due proportion of the assets. It is quite certain that such a disposition of the assets was never contemplated by any law upon the statute books. It was said in Thompson v. Whitmarsh, 100 N. Y. 35 , 2 N. E. 273 , if a defendant can use Ms demand as a counterclaim, he alone, of all the creditors, can secure a preference out of the assets. Yo such construction of the Code is permissible. Upon what theory, then, the defendant would insist that he had the right to offset his alleged counterclaim against the demand accruing subsequent to the death of the testator, we are at a loss to discover, and we are of the opinion that the questions presented on this appeal were very properly disposed of by the decision: upon the demurrer, as was well stated in the opinion of the learned justice in the court below: “The plaintiff’s claim in

The interlocutory judgment appealed from must be affirmed, with costs. All concur.