Deigel v. Magee

74 Misc. 520, 132 N.Y.S. 665

• Court: New York Supreme Court
• Decided: December 15, 1911
• Status: Published

Opinion

Kellogg, J. A., J.

This action is brought by the plaintiff, individually, and as administratrix of her mother, who . died intestate, to set aside the sale under foreclosure of a mortgage executed by the intestate ancestor in her lifetime, on the ground that said bond and mortgage was fraudulently obtained by the defendant.

In certain actions involving injuries to real estate of a deceased owner, actions have been permitted to be brought by a plaintiff succeeding to the title individually, and also as personal representative of the deceased. Shepard v. Manhattan R. Co., 117 N. Y. 442.

This practice has been permitted by the courts upon the theory that the cause of action alleged to exist in favor of the plaintiff in her individual capacity arose out of the same transaction, or was connected with the same subject of action as her cause of action alleged to exist in her favor in a representative capacity, and was, therefore, authorized by subdivision 9 of section 484 of the Code of Civil Procedure.

It would seem to he quite clear that the plaintiff cannot recover both in an individual and representative capacity for the same cause of action. She is only properly in court in both capacities upon the theory that, imeach capacity, she has a cause of action. Such causes of action as claimed by her being, therefore, distinct, the facts constituting each of them should he separately stated and numbered, as required by section 483 of the Code of Civil Procedure.

The motion is granted, with ten dollars costs.

Motion granted, with ten dollars costs.