Ferrin v. . Myrick , 1869 N.Y. LEXIS 246 ( 1869 )

Jacob Hartman was first appointed administrator of the estate of Sanford Hartman, deceased, and, while acting as such administrator, contracted with the respondent for the making and delivery of a gravestone for the grave of the intestate, and agreed to give him $140 therefor, and paid him forty dollars thereon.

Jacob Hartman was removed by the surrogate, and the appellant appointed such administrator in his place. The respondent brings this action against him as such administrator for the balance of the price of the gravestones.

The appellant demurred to the complaint on the grounds, first, it did not state facts sufficient to constitute a cause of action. Second, it did not show the appellant was duly appointed such administrator. Third, it did not show the gravestones were suitable to the rank and circumstances of the deceased. Fourth, there was no privity of contract between the parties to the action.

The main question raised by the demurrer is, that under the circumstances alleged in the complaint the action will not lie against the appellant as administrator. As alleged, the contract was made with the former administrator, and price agreed upon. If an action could be sustained against the former administrator on that contract, it can be sustained against the appellant as his successor. Thus the question is distinctly made whether an administrator can be sued as such on a contract made by him for the purchase of gravestones for the grave of his intestate so as to charge the estate. That he could be sued and charged personally cannot be questioned.

It is equally well settled that he may be sued as such administrator, and the estate charged, on a contract made with his intestate. This is a contract not made with the intestate, but with the administrator himself. The administrator had a right to make such contract. It is within the line of his duty. It is, to a reasonable amount, entitled, first, to be paid out of the assets of the estate in the hands of the administrator. There is no good reason then why he should not be sued as the representative of the estate, and the estate thereby charged. It is alleged in the complaint that the former administrator entered into the contract with respondent as administrator, which clearly indicates that he intended to bind himself as administrator and not personally. The respondent could not otherwise understand it. Thus the case is brought within the principles of the case of Chouteau v. Suydam (21 N.Y.R., 179), which I think must be regarded as the settled law of this State. The same principle seems to be clearly recognized in the matter of the estate of Thompson (41 Barbour, 237). There is some conflict of authorities on the question, which are collected in the able opinion of Judge MULLIN in this case at the Special Term; but those cases that are in opposition to these views must be deemed overruled. It is urged on the part of the appellant that whether these gravestones were suitable and proper, under the circumstances of the estate, was for the surrogate to determine, on the final accounting and settlement of the estate, and that if the administrator can be sued and judgment rendered against him as such, and the estate thereby charged, it cuts off the power of the Surrogate to determine, and for that reason, the action should not be sustained. On this demurrer, no such question can be raised, for the reason that the complaint alleged that the gravestones were suitable to the rank and station in life of deceased, and to the circumstances of his estate, and were reasonable, which by the demurrer is admitted. The question then is stripped of every difficulty, except can an administrator, as such, be sued on a just and proper contract, made by him as representative of the estate? My conclusion is that he can. But supposing the appellant, instead of demurring, had put in an answer to the complaint, and denied the stones being suitable and proper ones, the Supreme Court has ample jurisdiction to try and determine that question. But it is said there may be creditors and next of kin interested in this question who are not parties to the action. That is true; but it is the duty of the court whenever it sees there are other persons, not made parties interested in the action without whom a complete determination of the action cannot be made, to order such parties to be brought in. (Code, § 122.)

If the creditors and next of kin were before the court, its determination of the question would be binding on all interested. So that under any circumstances, there is no objection to a recovery in an action like this.

The appellant also makes a point, that there is no sufficient allegation in the complaint that he was appointed administrator of the estate. I think the allegation is sufficient. It alleges that the former administrator was duly removed by the surrogate of Monroe county, and the appellant appointed in his place, and that the appellant was now such administrator. The words "duly by the surrogate of Monroe county" apply as well to the last part of the sentence as to the first.

The judgment of the Supreme Court should be affirmed with costs.

HUNT, Ch. J., WOODRUFF, GROVER, DANIELS and JAMES, JJ., for reversal of General Term.

MURRAY, MASON and LOTT, JJ., for affirmance of General Term.

Order of General Term reversed and that of Special Term affirmed.