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Watson v. Moriarty

59 N.Y.S. 73 Court N.Y. Sup. Ct. Decision date 1899-06-26 English

Delivered by Me AD AM, J.

Contents

Majority

p. 73
WATSON v. MORIARTY et al.
(Supreme Court, Trial Term, New York County.
June 26, 1899.)

Headnote

Decedent’s Estate—Property of Third Person—Tort of Executor.
Where one at the time of his death had in his possession, as bailee, property belonging to a third person, and the executor refuses to surrender it to its owner, the estate is not liable for the wrong committed by the executor, and an action must be brought against him personally, and not in his representative capacity.
Action by Ida Watson against John J. Moriarty, as executor. Motion for a new trial.
Denied.
E. F. Bullard, for the motion
A. A. Joseph, opposed.

The complaint charges that in November, 1894, the plaintiff left on storage with John Moriarty, the testator, certain personal property belonging to her, of the value of $1,000; that Moriarty died about April, 1897; that the property came into the hands of the defendant, as Moriarty’s executor; and that he refused to give it up on demand. The action is against the defendant in Ms representative capacity, as executor, and the judgment sought for is one to reach the assets of the estate he represents. The complaint was dismissed at the trial upon the ground that the estate of Moriarty could not be charged for a wrong committed by the defendant as executor; the remedy being against the defendant personally, and not in his representative capacity. This ruling was right (Norling v. Allee, 31 N. Y. St. Rep. 412 ; Keating v. Stevenson, 21 App. Div. 604 , 47 N. Y. Supp. 847 ; Donohue v. Kendall, 50 N. Y. Super. Ct. 386 ; McCue v. Finck, 20 Misc. Rep. 506 , 46 N. Y. Supp. 242 ), and the motion for a new trial must be denied. No costs.

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