Murray v. Church ( 1874 )

Daniels, J.

Tlj.e plaintiffs in the title of this action describe themselves as executrix and executor of the last will and testament of Peter Murray, deceased, and they then -proceed,, for the purpose of alleging a canse of action, to set out in the complaint the execution and delivery by the defendants, Margaret L. and Henry Wood, to the plaintiffs, in their individual capacity, of a bond and mortgage to secure the sum of $5,500, "with interest. They also show that the moneys secured and agreed to be paid have become due, and that the same are wholly unpaid, and that the other defendants have some interest in or lien upon the mortgaged premises, or some part of them, which accrued subsequent to the lien of the mortgage. The mortgage is alleged to .have been recorded, and judgment of foreclosure and sale is demanded. A good cause of action is completely alleged and set forth in the complaint, but it appears to be in the plaintiffs’ own right, and not in their representative capacity. If they had not described themselves as executrix and executor, no possible objection could be made to the cause of action alleged. It would then be as complete and perfect as any rules of pleading could require it to be. The circumstance -that they did so describe themselves does not in any manner change the effect of the facts alleged. That is merely a description of their persons, and in view of the facts stated, it does not warrant the conclusion that the suit must be maintained by them in that capacity. They were at liberty, notwithstanding that description, to rely upon a cause of action existing in their favor, in their own right. And in doing so, their complaint, being sufficient in all other respects, was not demurrable on account of the fact that in the title of the action they described themselves as having a representative character. This point is very well settled by the case of Merritt v. Seaman, 6 N. Y. 168, and the authorities referred to in the opinion of Judge G-bidley.

As the bond and mortgage were executed and delivered to the plaintiffs, and secured the moneys mentioned to them, they did have the legal capacity to maintain the present action for the foreclosure of the mortgage, although they were executor and executrix precisely as the title of the action stated them to be. And the facts set forth in the complaint presented a perfect cause of action in their favor. The demurrer presenting only these objections, was, therefore, clearly frivolous and was properly overruled as such.

The allowance made of two and a half per cent was within the discretion conferred upon the court in this class of cases (Code, § 309), and there is nothing in the case showing that it was improperly exercised on the present occasion. But if there were any thing of that nature in the case, it would not aid the defendant appealing, because no exception was taken presenting it for consideration. As no other objections are presented by the appeal, the judgment should be affirmed, with costs.

Davis, P. J., concurred.

Judgment affirmed.