Newcombe v. Lottimer — 35 N.Y. St. Rep. 614

Majority

p. 614

Isaac B. Newcombe et al., Resp’ts, v. William A. Lottimer et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

1. Pleading—Parties—Executors and administrators.

In an action brought by the pledgees of certain bonds to procure their transfer to them, as against the claim of executors to title to the bonds as part of the estate, the executors are properly made parties, both in their representative capacity and individually, as their acts as executors may result in individual liability.

2. Same.

One H., who was an executor of an estate, pledged certain bonds to plaintiffs, and thereafter became insolvent. Defendants, who were the co-executors of H., published a notice declaring that the bonds belonged to

p. 615

the estate, and the railroad company refused to register the bonds. In an action to compel a transfer of the honds^ hut not to determine the ultimate ownership of them, Held, that H. was not a necessary party.

Appeal from interlocutory judgment overruling demurrer to the complaint.

James Thomson, for app’lts; A. H. Joline, for resp’ts.

This is the second time that this case has been before the general term, and the facts sufficiently appear in the opinion heretofore filed on the 10th of January, 1890. 28 N. Y. State Rep., 716.

Upon that appeal the demurrer was sustained in certain respects, and the complaint has been amended and a new demurrer put in, which was overruled at the special term, and from the judgment thereupon entered this appeal is taken.

It is not necessary to discuss the questions which were disposed of by the former appeal, some of which are presented again to our attention. We shall confine ourselves to a brief consideration of the objections made by the appellants to the complaint in question.

It is urged that the amended complaint does not' state facts sufficient to constitute a cause of action against Lottimer and Blood-good individually. And this objection is founded upon the fact that Lottimer and Bloodgood, as executors of William Lottimer, deceased, are also made parties defendant; and that it is alleged that as executors they claim title to the securities which form the subject matter of this action.

It is well settled that the acts of executors in respect to the estate of which they are the trustees, which acts may be proper in themselves, may result in an individual liability of such executors ; and that in the course of the administration of an estate the acts done by the executor are his individual acts for which he is individually responsible, although the acts done may relate to the business of the estate.

Applying this rule to the notices given by Lottimer and Blood-good to the railroad company in reference to these securities, although they claimed to be acting as executors, they have been individually liable therefor. It was because of the impossibility . of determining always from a given state of facts as to whether an individual or representative liability was created, that the provisions of the Code were enacted enabling a party to make executors both individually and respresentatively parties, and upon the final facts to determine as to whether to hold them as individuals or as executors.

It is also claimed that there is a defect of parties defendant to this action in the omission of James L. Hill.

This objection is not tenable, because here, as in the former action, the plaintiffs do not seek to have the ultimate ownership of these securities determined. All that they claim is that as against the claim of the defendants Lottimer and Bloodgood, either individually or as executors, they have a right to have these securities transferred to their names, and to collect the coupons which have become due thereon.

p. 616

This question can be determined with the parties now before the court. Whether James L. Hill had any title to these securities or not is a matter which is entirely immaterial. If the plaintiffs are not bonafide pledgees of these securities they cannot recover. If they are, then, notwithstanding any claim that the defendants Lottimer and Bloodgood may have upon these securities, they have a right to hold them, to have them transferred and to collect the moneys which have become due upon them. Hill is not a necessary party to the controversy as between Lottimer and Bloodgood and the plaintiffs. What may be the ultimate fate of these securities is another question. But as pledgees the plaintiffs are entitled to exercise all the rights of owners, and to have the same transferred to their names and to collect the amount due upon them. It would be a curious state of the law if a man could give notice to a debtor not to pay an obligation which was held as a pledge, the pledgor having fled from the country, that because the pledgor could not be served with process the pledgee would be remediless and unable to enforce any of his rights as pledgee. We do not think that any such state of affairs, exists. ’

The objection that there has been a misjoinder of causes of action was disposed of upon the former appeal and need not be again discussed.

1 It would seem, therefore, that the various grounds upon which it is sought to sustain the demurrer are not tenable, and the judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ., concur.