Blum v. Dabritz

City of New York Municipal Court

Blum v. Dabritz

78 N.Y.S. 207

DecidedOctober 15, 1902

StatusPublished

This text of 78 N.Y.S. 207 (Blum v. Dabritz) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blum v. Dabritz, 78 N.Y.S. 207 (N.Y. Super. Ct. 1902).

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Opinion

O’DWYER, J.

The action is brought against the defendant, individually and as executrix of the last will and testament of Edward Dabritz, deceased, for damages upon the covenant of quiet enjoyment contained in a lease to plaintiff from Edward Dabritz, which •covenant, it is alleged, was broken by defendant’s unlawfully instituting dispossess proceedings as executrix of Edward Dabritz, and •ousting plaintiff from the premises. The defendant, as executrix, etc., demurs to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action to charge the defendant as executrix of the last will and testament of Clara Dabritz, deceased. The use of the name Clara is clearly a clerical mistake, and the demurrer may be amended by inserting the name Edward in place thereof as the name of the decedent.

It is well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, do not bind the estate. Austin v. Munroe, 47 N. Y. 366. An executor has no principal behind him for whom he can contract as agent. Ferrin v. Myrick, 41 N. Y. 319. If an executor may not bind the estate by an executory contract made for the benefit thereof, it certainly follows that the estate cannot be held liable for the tort of the executor in his representative capacity. It has been so decided. McCue v. Finck (Sup.) 46 N. Y. Supp. 242; Watson v. Moriarty (Sup.) 59 N. Y. Supp. 73. The case does not fall within section 1815 of the Code of Civil Procedure, because the facts alleged do not show a liability in a representative capacity, nor make it uncertain whether it so existed, or was against the representative individually. It clearly appears that, if any liability exists, it is against Clara Dabritz individually, and not otherwise.

Demurrer sustained, with $20 costs to defendant, and with leave to plaintiff to amend within six days upon payment of costs. Settle decision and order on two days’ notice.

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O’DWYER, J.

The action is brought against the defendant, individually and as executrix of the last will and testament of Edward Dabritz, deceased, for damages upon the covenant of quiet enjoyment contained in a lease to plaintiff from Edward Dabritz, which •covenant, it is alleged, was broken by defendant’s unlawfully instituting dispossess proceedings as executrix of Edward Dabritz, and •ousting plaintiff from the premises. The defendant, as executrix, etc., demurs to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action to charge the defendant as executrix of the last will and testament of Clara Dabritz, deceased. The use of the name Clara is clearly a clerical mistake, and the demurrer may be amended by inserting the name Edward in place thereof as the name of the decedent.

It is well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, do not bind the estate. Austin v. Munroe, 47 N. Y. 366. An executor has no principal behind him for whom he can contract as agent. Ferrin v. Myrick, 41 N. Y. 319. If an executor may not bind the estate by an executory contract made for the benefit thereof, it certainly follows that the estate cannot be held liable for the tort of the executor in his representative capacity. It has been so decided. McCue v. Finck (Sup.) 46 N. Y. Supp. 242; Watson v. Moriarty (Sup.) 59 N. Y. Supp. 73. The case does not fall within section 1815 of the Code of Civil Procedure, because the facts alleged do not show a liability in a representative capacity, nor make it uncertain whether it so existed, or was against the representative individually. It clearly appears that, if any liability exists, it is against Clara Dabritz individually, and not otherwise.

Demurrer sustained, with $20 costs to defendant, and with leave to plaintiff to amend within six days upon payment of costs. Settle decision and order on two days’ notice.

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78 N.Y.S. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blum-v-dabritz-nynyccityct-1902.

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