Farrington v. American Loan & Trust Co.

9 N.Y.S. 433, 1890 N.Y. Misc. LEXIS 203

• Court: The Superior Court of the City of New York and Buffalo
• Decided: January 21, 1890
• Status: Published

Opinion

Dugro, J.

This action is brought by Horace Farrington and William H. Brigham, as administrator of the estate of Luther Brigham, deceased, against the defendant, and by it equitable relief is sought. The complaint alleges that the plaintiff Brigham is administrator by virtue of letters granted in the state of Massachusetts. It does not appear that letters were granted to him in Hew York.

It has always been the law of this state that a foreign executor or administrator has no standing as a party plaintiff in our courts without taking out letters here. Palmer v. Insurance Co., 84 N. Y. 67; In re Webb, 11 Hun, 124; Redf. Sur. Pr. (3d Ed.) 442, and cases there cited.

The words, “as administrator of the estate of Luther Brigham, deceased, etc.,” appearing in the title of the action, cannot be treated as mere descriptio persona. In Stilwell v. Carpenter, 62 N. Y. 639, relied upon ak an authority in support of plaintiff’s claim that they can be so considered, the word “as” does not appear. The complaint confirms the fact that the action is brought by Brigham in his representative capacity, and not personally. The first and second grounds of demurrer are, therefore, well taken.

The third ground of demurrer is also tenable. Bear v. Telegraph Co., 36 Hun, 400. It is not necessary to pass upon the question presented by the fourth ground of demurrer, as it can readily be removed if the plaintiff amends, as can also, probably, a point raised by reason of the failure of the complaint to allege that the bonds in question were not registered. The defendant should have judgment upon the demurrer in his favor, with costs; with leave, however, to plaintiffs to amend within 20 days on payment of costs.