Burtis v. Burtis — 39 N.Y. St. Rep. 637

Majority

p. 637

Sarah Burtis and Sarah Burtis, Ex’rx, Resp’t, v. Sarah Burtis, Adm’rx, et al., App’lts.

(Supreme Court, General Term,, Third Department,

Filed July 11, 1891.)

Headnote

Pasties—Foreclosure.

Plaintiff brings this action individually, and as executrix, to foreclose a mortgage given by one 0., of whom she is the administratrix, and makes herself a party defendant in that capacity, together with all persons interested in the estate. Held, that the fact that she was named as a defendant did not prejudice the other defendants, and was not a valid ground of demurrer.

Appeal from an interlocutory judgment entered upon an order overruling a demurrer to plaintiff’s complaint.

The complaint is for the foreclosure of one mortgage given by James Gr. Cleveland, now deceased, to secure the payment of two bonds, one for $1,142.55 to the plaintiff Sarah Burtis, the other for $1,021.53 to Elizabeth Cleveland, now deceased. Sarah Burtis is the executrix of, etc., of Elizabeth Cleveland, and the administratrix of, etc., of James Gr. Cleveland, and she sues as plaintiff in her own right, and as executrix, and names herself as administratrix of the deceased mortgagor a party defendant with the other heirs of the mortgagor. She and Elizabeth Cleveland were sisters of the mortgagor, Elizabeth dying before him. The complaint asks, in addition to the decree of foreclosure and sale, judgment against Sarah Burtis as administratrix of the mortgagor for the deficiency. Frances Cleveland and Caroline L. Kerr, a nephew and niece, demur upon the grounds: That the complaint does not state facts, sufficient to constitute a cause of action. That the plaintiff has not the legal capacity to sue herself. That there is a defect of parties, since no defendant is named who is qualified to defend the interest of the estate of the deceased mortgagor against the plaintiff.

Frank H. Graham, for app’lts; Lonson Fraser, for resp’t.

—That a person cannot sue himself is a common law rule, but in equity this technicality does not stand in the way of justice. Cole v. Reynolds, 18 N. Y., 74 . Neilly v. Neilly, 23 Hun, 651 , is an authority for such an action as this. The case was reversed in 89 N. Y., 352 , because of a former adjudication. Lyon as guardian v. Lyon, 67 N. Y., 250 , was another such action, and the practice was not questioned.

Although the plaintiff sues both in her own right and as executrix, and names herself in her capacity as administratrix, etc., of James Gr. Cleveland as defendant, she does not and probably cannot really sue herself. There was no need of naming herself as a party defendant. All she needed to do was to recite, as she does in the complaint, the facts showing her several capacities and the

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facts constituting her causes of action, and then bring before the court as parties defendant, as she has, all persons having any adverse interest If any of the defendants shall ultimately be prejudiced it will be because they neglect to resort to all the methods open to them to develop the truth. Sarah Burtis cannot confess judgment in her own favor or make any admissions for her own benefit against the estates she represents.

She does not, except nominally, represent both sides of this action, and the court will, if any of the defendants properly invoke it, see to it that the accident of her several capacities in no way sacrifices justice. The fact that she has placed her name among those of the defendants injures no defendant. Each one can, and must in this action, as in every other, look out for his own interests. The defendants ask too much; they ask Sarah Burtis to resign one of her trusts in order to obtain justice. Why should she ? Who will take it up ? It may be that all other interests are to be promoted by leaving the estate of James Gr. Cleveland without a representative. But she has her rights and duties in all her capacities, and the law does not require her to renounce any in order to secure justice. The objections taken by the demurrer are apparent rather than real. They are not substantial, and were properly overruled.

Interlocutory judgment and order affirmed, with costs.

Learned, P. J., and Mayham, J, concur.