Gillet v. Hutchinson's Administrators — 24 Wend. 183

Majority

p. 183

*Gillet vs. Hutchinson’s Administrators.

Headnote

In an action against an administrator, the plaintiff cannot join a count on'a promise by the intestate with counts on promises by the administrator for carnes of action accruing since the death of the intestate; a promise hy the administrator on an account stated of moneys due from the intestate in his life time may he joined with a count on a promise by the intestate, but not a promise by the administrator on an account stated of moneys due from himself.

Misjoinder of counts. The declaration in this case contains several counts. In the first, the plaintiff declares on a promissory note dated October 1,1836, made by John W. Dygert for $300, payable one year after date to the order of the intestate, and endorsed by him in Ms life time to the plaintiff; averring a demand, and non-payment by the maker when the note fell due, and notice to the defendants as administrators, the intestate being then dead, and then stating a promise by the administrators to pay the note. The second count is on a like note, omitting' averment of notice of non-payment. The tMrd count is for money lent by the plaintiff to the de

p. 184

fendants, as administrators. Fourth, for money paid &c. by the plaintiff to and for the use of the defendants, administrators as aforesaid. Fifth, for money had and received by the defendants, administrators as aforesaid, to and for the use of the plaintiff. Sixth, for that the defendants, administrators as aforesaid, accounted together with the plaintiff of and concerning divers sums of money before that time due and owing from the defendants, administrators as aforesaid, to the plaintiff, &c. Demurrer and joinder.

J. A. Spencer, for defendants.

J. V. L. Pruyn, for plaintiff.

By the Court,

Independant of minor objections, there is a fatal misjoinder of counts. The two first counts are on promises [ *185 ] made by the intestate in his life *time, though the right of action did not accrue until after his death. On these counts the judgment would be de bonis intestatoris; although a promise by the administrators is alleged, the counts show that the original obligation was contracted by the intestate. Carter v. Phelps, 8 Johns. R. 440. The four remaining counts are on promises made by the administrators, and relate wholly to transactions after the death of the intestate. On these counts, the judgment would be de bonis propriis. As to the money counts, vid. Rose v. Bowler, 1 H. Black. 108. Bridgen v. Parkes, 2 B. & P. 424. Powell v. Graham, 7 Taunt. 580. Jennings v. Newman, 4 T. R. 347. 2 Saund. 117, c. note. Myer v. Cole, 12 Johns. R. 349. Demott v. Field, 7 Cowen, 58. The count upon an account stated, might have been joined with the two first counts, if the accounting had been of moneys due from the intestate in his life time ; but it is of moneys due from the administrators. Reynolds v. Reynolds, 3 Wend. 244 . The case of Powell v. Graham, 7 Taunt. 580, so far as it relates to the insimul computassent count, is' not law in this state, if it is in England.

Beyond the misjoinder, the second count is bad, for not averring notice of demand and non-payment of the note ; and the other counts are not very formally drawn.

Judgment for defendants.

Cases cited

Reynolds v. Reynolds 3 Wend. 244 N.Y. Sup. Ct. p. 184