Nichols v. Smith ( 1876 )

Noxon, J.:

The precise question in this case was decided in the courts of Massachusetts in the case of Talmage v. Chapel (16 Mass., 69), where it was held, in an action upon a judgment already recovered in favor of the plaintiff as administrator, in the State of New York, that the action could be sustained by the plaintiff in his own name, and not as administrator. The court say in the opinion : “ The debt was due to him, he being answerable for it to the estate of the intestate.” “ An administrator here (in Massachusetts) could not maintain an action upon this judgment, not being privy to it. Nor could he maintain an action on the original contract; for the defendants might plead in bar the judgment recovered against them in New York. The debt sued for is in truth due to the plaintiff in his personal capacity. For he makes himself accountable for it by bringing his action ; and he may well declare that the debt is due to himself.” I am not aware that the precise question has been adjudicated in the courts of this State. But the reason of the rule for promoting justice, as laid down in 16 Massachusetts, is as strong in this State as in Massachusetts. In Bright v. Currie (5 Sandf., 437), Justice Bosworth states the rule to be, that an administrator in one State may sue, in his individual capacity, on a judgment recovered'by him in another State as administrator. And the same rule is laid down by the chancellor in Lawrence v. Lawrence (3 Barb. Ch., 74), who cites the case in 16 Mass., 71, with approval. (See, also, Story on Conflict of Laws, 516, 517.) In the case of Petersen v. Chemical Bank (32 N. Y., 21), a number of cases are cited where the executor or administrator may sue in his own name in the courts of this State; and the rule is laid down as established, that an “ executor, as soon as he has clothed himself with the commission of the Probate Court, is vested with the title to all the movable property and rights of action which the deceased possessed at the instant of his death. The title of the executor, it is true, is fiduciary and not beneficial. That title is, however, perfect against every person except the creditors and legatees of the deceased.” So in the case before us, the title to the judgment was absolutely in the plaintiffs; and when they take proceedings in our courts to collect the judgment it is in the nature of a chose in action, and may be prosecuted here in their individual names. The judgment is to be used on the trial to show and establish their title, and the amount they are entitled to recover. There is no substantial reason, why a recovery may not be had in this case in the individual names of plaintiffs, as well as in eases arising upon promissory notes and other choses in action. If the judgment had been assigned by them the assignee would be entitled to recover in his own name within the authority of 32 New York, 21. It is not stated in the complaint how the plaintiffs, as individuals, derive title, except as may be inferred from the complaint.

The complaint states that there are no creditors of the estate of said Dickson, deceased, residing in the State of New York; and this fact, if proved, would show that the rule established as to executors and administrators, suing in our courts, would hardly apply if the action had been in the name of plaintiffs as executors.

The rule laid down in 16 Massachusetts can work no injustice ; on the other hand, it gives a remedy in cases where, without it, no remedy would seem to exist.

The order sustaining the demurrer should be affirmed with costs, with leave to defendants to amend their answer within twenty days, on payment of costs.

Mullin, P. J., and Smith, J., concurred.

Judgment accordingly.