Burtis v. Burtis

New York Supreme Court

Burtis v. Burtis

15 N.Y.S. 412, 68 N.Y. Sup. Ct. 98, 39 N.Y. St. Rep. 637, 61 Hun 98, 1891 N.Y. Misc. LEXIS 3248

CourtNew York Supreme Court

DecidedJuly 11, 1891

StatusPublished

Cited by1 cases

This text of 15 N.Y.S. 412 (Burtis v. Burtis) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burtis v. Burtis, 15 N.Y.S. 412, 68 N.Y. Sup. Ct. 98, 39 N.Y. St. Rep. 637, 61 Hun 98, 1891 N.Y. Misc. LEXIS 3248 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Landon, J.

That a person cannot sue himself is a common-law rule, but in equity this technicality does not stand in the way of justice. Cole v. Reynolds, 18 N. Y. 74. Neilly v. Neilly, 23 Hun, 651, is an authority for such an action as this. The case was reversed in 89 N. Y. 353, because of a former adjudication. Lyon v. Lyon, 67 N. Y. 250, was another such action, and the practice was not questioned. Although the plaintiff sues both in her own right and as executrix, and names herself, in her capacity as administratrix, etc., of James G. Cleveland, as defendant, she does not, and probably cannot, really sue herself. There was no need of naming herself as a party defendant. All she needed to do was to recite, as she does in the complaint, the facts showing her several capacities, and the facts constituting her causes of action, and then bring before the court as parties defendant, as she has, all persons having any adverse interest. If any of the defendants shall ultimately be prejudiced, it will be because they neglect to resort to all the methods open to them to develop the truth. Sarah Burtis cannot confess judgment in her own favor, or make any admissions for her own benefit, against the estates she represents. She does not, except nominally, represent both sides of this action; and the court will, if any of the defendants properly invoke it, see to it that the accident of her several capacities in no way sacrifices justice. The fact that she has placed her name among those of the defendants injures no defendant. Each one can and must in this action, as in every other, look out for his own interests. The defendants ask too much. They ask Sarah Burtis to resign one of her trusts in order to obtain justice. Why should she? AVho will take it up? It may be that all other interests are to be promoted by leaving the estate of James G. Cleveland without a representative. But she has her rights and duties in all her capacities, and the law does'not require her to renounce any in order to secure justice. The objections taken by the demurrer are apparent, rather than real. They are not substantial, and were properly overruled. Interlocutory judgment and order affirmed, with costs. All concur.

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Landon, J.

That a person cannot sue himself is a common-law rule, but in equity this technicality does not stand in the way of justice. Cole v. Reynolds, 18 N. Y. 74. Neilly v. Neilly, 23 Hun, 651, is an authority for such an action as this. The case was reversed in 89 N. Y. 353, because of a former adjudication. Lyon v. Lyon, 67 N. Y. 250, was another such action, and the practice was not questioned. Although the plaintiff sues both in her own right and as executrix, and names herself, in her capacity as administratrix, etc., of James G. Cleveland, as defendant, she does not, and probably cannot, really sue herself. There was no need of naming herself as a party defendant. All she needed to do was to recite, as she does in the complaint, the facts showing her several capacities, and the facts constituting her causes of action, and then bring before the court as parties defendant, as she has, all persons having any adverse interest. If any of the defendants shall ultimately be prejudiced, it will be because they neglect to resort to all the methods open to them to develop the truth. Sarah Burtis cannot confess judgment in her own favor, or make any admissions for her own benefit, against the estates she represents. She does not, except nominally, represent both sides of this action; and the court will, if any of the defendants properly invoke it, see to it that the accident of her several capacities in no way sacrifices justice. The fact that she has placed her name among those of the defendants injures no defendant. Each one can and must in this action, as in every other, look out for his own interests. The defendants ask too much. They ask Sarah Burtis to resign one of her trusts in order to obtain justice. Why should she? AVho will take it up? It may be that all other interests are to be promoted by leaving the estate of James G. Cleveland without a representative. But she has her rights and duties in all her capacities, and the law does'not require her to renounce any in order to secure justice. The objections taken by the demurrer are apparent, rather than real. They are not substantial, and were properly overruled. Interlocutory judgment and order affirmed, with costs. All concur.

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15 N.Y.S. 412, 68 N.Y. Sup. Ct. 98, 39 N.Y. St. Rep. 637, 61 Hun 98, 1891 N.Y. Misc. LEXIS 3248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burtis-v-burtis-nysupct-1891.

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