Haight, J.
The cause of action as alleged in the complaint was that Pierce, as trustee, be compelled to render an account of the trust funds in his hands; that he be enjoined from making improper investments, and that he be compelled to make restitution of such of the trust funds as had been lost through his fault. In the summons and in the title of the complaint he is named only in his individual capacity, and it is conceded that no cause of action is alleged against him in that capacity. The demurrer is “that there .is a defect of parties, in that Carlton B. Pierce as trustee under the will of Abijali Barnum, deceased, is a necessary defendant,” and again, “ that the complaint does not state facts sufficient to constitute a cause of action.”
It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued. If the judgment was for or against an executor, administrator, assignee or trustee, it would not preclude him, in an action affecting him personally, from disputing the findings or judgment, although the same questions are involved.
(Collins
v.
Hydorn,
135 N. Y. 320;
Landon
v.
Townshend,
112 N. Y. 93-99 ;
Rathbone
v.
Hooney,
58 N. Y. 463-467.)
The defendant Pierce, individually, being in contemplation of law a distinct party from that of Pierce as trustee under the will of Barnum, deceased, I think adopted the correct
practice to relieve himself from liability personally by interposing the demurrer to the complaint. The Code of Civil Procedure provides that an action is commenced by the service of a summons; that the summons must contain the title of the action, specifying the names of the parties to the action. (Secs. 416, 417.) It further provides that the defendant may demur when there is defect of parties plaintiff or defendant, and when the complaint does not state facts sufficient to constitute a cause of action. (Sec. 488.) It thus appears that the action was commenced by the service of the summons in which the defendant was named as a party individually, and that no cause of action was stated in the complaint against him in that capacity. The defendant, therefore, brings himself squarely within the express provisions of the Code in interposing his demurrer. This practice imposes no unjust hardship upon the plaintiff. He is only called upon to determine the nature of his own cause of action, as to whether it is against the person in his individual capacity, or in his representative capacity.
It is true that there are cases in which it has been said that the title and pleadings may be considered together to ascertain the true nature of the action, and the cases of
Stilwell
v.
Carpenter
(62 N. Y. 639);
Beers
v.
Shannon
(73 N. Y. 292);
Litchfield
v.
Flint
(104 N. Y. 543), and
Knox
v.
Metropolitan El. Ry. Co.
(58 Hun, 517; affirmed, 128 N. Y. 625) are relied upon to sustain the plaintiff’s position. But these cases are not in conflict with our views upon this subject. In the case of
Stilwell
v.
Carpenter
the action was entitled “ Charlotte Stilwell, Executrix, etc.” Upon the trial the defendant moved to dismiss the complaint on the ground that the action was brought by the plaintiff in her representative capacity as an executrix. It was held that the motion was properly denied, for the reason that it did not appear that the action was brought by the plaintiff
as
executrix, nor did it appear what estate she was executrix of. Therefore, the words
“
executrix, etc.,” were merely
descriptio personae.
In the
case of
Beers
v.
Shannon
it was claimed that the action was not brought by the plaintiff in his representative character. The plaintiff gave his name, and following it the words “ executor of, etc., of John Beers, deceased.” He omitted the word “ as ” before executor. It will be observed that the
Beers
case differs from that of
Stilwell
v. Carpenter, for in the
Beers
case the estate of which he was executor is given. It was held, that while without the word' “as” it had frequently been held that the addition to the name of the. party was
deseriptio
persones, yet, in view of the allegations of the complaint, it was apparent that he intended to sue in his representative capacity, and that the description of him was sufficient for that purpose. In the case of
Litchfield
v.
Flint
the title was “ Electus B. Litchfield, Executor, etc.” The complaint alleged a cause of action in his favor in his individual capacity and not as a representative. In the complaint there was. an allegation that he was an executor of the will of a deceased person, naming him. It was held that the words “ executor, etc.,” were merely
deseriptio persones.
In the case of
Knox
v.
Met. El. Ry. Co.
it was contended that the plaintiffs could not maintain the action, because, in the caption of their complaint, they styled themselves “ as executors ” and not “ as trustees ” of the last will and testament of Richard Smith Clark. In the body of the complaint, however, they set forth the testator’s will and allege the devise of the property in question to his executors in trust. Under the circumstances, it was held that the plaintiffs had the right to describe themselves as “ executors,” and that the action was properly brought.
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Haight, J.
The cause of action as alleged in the complaint was that Pierce, as trustee, be compelled to render an account of the trust funds in his hands; that he be enjoined from making improper investments, and that he be compelled to make restitution of such of the trust funds as had been lost through his fault. In the summons and in the title of the complaint he is named only in his individual capacity, and it is conceded that no cause of action is alleged against him in that capacity. The demurrer is “that there .is a defect of parties, in that Carlton B. Pierce as trustee under the will of Abijali Barnum, deceased, is a necessary defendant,” and again, “ that the complaint does not state facts sufficient to constitute a cause of action.”
It has been repeatedly held that persons suing or being sued in their official or representative capacity are, in contemplation of law, distinct persons, and strangers to any right or liability as an individual, and consequently a former judgment concludes a party only in the character in which he was sued. If the judgment was for or against an executor, administrator, assignee or trustee, it would not preclude him, in an action affecting him personally, from disputing the findings or judgment, although the same questions are involved.
(Collins
v.
Hydorn,
135 N. Y. 320;
Landon
v.
Townshend,
112 N. Y. 93-99 ;
Rathbone
v.
Hooney,
58 N. Y. 463-467.)
The defendant Pierce, individually, being in contemplation of law a distinct party from that of Pierce as trustee under the will of Barnum, deceased, I think adopted the correct
practice to relieve himself from liability personally by interposing the demurrer to the complaint. The Code of Civil Procedure provides that an action is commenced by the service of a summons; that the summons must contain the title of the action, specifying the names of the parties to the action. (Secs. 416, 417.) It further provides that the defendant may demur when there is defect of parties plaintiff or defendant, and when the complaint does not state facts sufficient to constitute a cause of action. (Sec. 488.) It thus appears that the action was commenced by the service of the summons in which the defendant was named as a party individually, and that no cause of action was stated in the complaint against him in that capacity. The defendant, therefore, brings himself squarely within the express provisions of the Code in interposing his demurrer. This practice imposes no unjust hardship upon the plaintiff. He is only called upon to determine the nature of his own cause of action, as to whether it is against the person in his individual capacity, or in his representative capacity.
It is true that there are cases in which it has been said that the title and pleadings may be considered together to ascertain the true nature of the action, and the cases of
Stilwell
v.
Carpenter
(62 N. Y. 639);
Beers
v.
Shannon
(73 N. Y. 292);
Litchfield
v.
Flint
(104 N. Y. 543), and
Knox
v.
Metropolitan El. Ry. Co.
(58 Hun, 517; affirmed, 128 N. Y. 625) are relied upon to sustain the plaintiff’s position. But these cases are not in conflict with our views upon this subject. In the case of
Stilwell
v.
Carpenter
the action was entitled “ Charlotte Stilwell, Executrix, etc.” Upon the trial the defendant moved to dismiss the complaint on the ground that the action was brought by the plaintiff in her representative capacity as an executrix. It was held that the motion was properly denied, for the reason that it did not appear that the action was brought by the plaintiff
as
executrix, nor did it appear what estate she was executrix of. Therefore, the words
“
executrix, etc.,” were merely
descriptio personae.
In the
case of
Beers
v.
Shannon
it was claimed that the action was not brought by the plaintiff in his representative character. The plaintiff gave his name, and following it the words “ executor of, etc., of John Beers, deceased.” He omitted the word “ as ” before executor. It will be observed that the
Beers
case differs from that of
Stilwell
v. Carpenter, for in the
Beers
case the estate of which he was executor is given. It was held, that while without the word' “as” it had frequently been held that the addition to the name of the. party was
deseriptio
persones, yet, in view of the allegations of the complaint, it was apparent that he intended to sue in his representative capacity, and that the description of him was sufficient for that purpose. In the case of
Litchfield
v.
Flint
the title was “ Electus B. Litchfield, Executor, etc.” The complaint alleged a cause of action in his favor in his individual capacity and not as a representative. In the complaint there was. an allegation that he was an executor of the will of a deceased person, naming him. It was held that the words “ executor, etc.,” were merely
deseriptio persones.
In the case of
Knox
v.
Met. El. Ry. Co.
it was contended that the plaintiffs could not maintain the action, because, in the caption of their complaint, they styled themselves “ as executors ” and not “ as trustees ” of the last will and testament of Richard Smith Clark. In the body of the complaint, however, they set forth the testator’s will and allege the devise of the property in question to his executors in trust. Under the circumstances, it was held that the plaintiffs had the right to describe themselves as “ executors,” and that the action was properly brought.
It will readily be seen that none of these cases reach the question involved in this case. All of these cases were considered in the case of
First National Bank
v.
Shuler
(153 N. Y. 163) in which it appears to us the question involved in this case was decided and disposed of. That case was a creditor’s action to set aside a general assignment and certain transfers of property as in fraud of the rights of creditors. The action was brought against one Waldron, as assignee, and
against Elizabeth IT. Shuler individually, to whom it was claimed certain transfers of property had been made. After the action had been brought, Isaac 0. Shuler, the judgment debtor, died, leaving a will, in which Elizabeth H. Shuler was appointed his executrix. Subsequently, upon the application of the plaintiff, the court made an order permitting the plaintiff to serve a supplemental complaint alleging the death of Shuler and the appointment of his executrix-, etc. But no order was made continuing the action against her as executrix or directing that she be brought in and made a party in her representative capacity. Andrews, Oh. J., in delivering the opinion of the court, says : “We think the proceedings and judgment in this case are fatally defective for the omission of the plaintiff to bring in and make the defendant Elizabeth IT. Shuler a party defendant in the action, in her capacity as executrix of the original defendant, Isaac 0. Shuler. * * * Cases are cited to support the contention that the defendant Elizabeth IT. Shuler having been in fact a party to the action in her individual name, should be regarded as a party in her representative character also.” Then he. refers to the cases above alluded to, and continues: “But a suit against one sued as an individual does not bind him as trustee, and, conversely, judgment against one sued in a representative capacity does not conclude him in a subsequent action brought by or against him as an individual, although the same identical issue is involved, and the decision in the first action was upon the merits.”
The defendant Pierce may be liable as trustee, but is not liable individually. But if he is not permitted .to interpose a demurrer how can he shield himself from the entry of a judgment against him personally. Must he appear and serve an answer
1
If so, what is he to answer ? He may not be able to truthfully deny the allegations against him as trustee, and no facts have been alleged against him individually which call for an answer. But assuming that he may answer and go to trial and upon the trial procure a ruling to the effect that he is not liable personally, it would be the adoption of a cumber
some and expensive practice, reaching a result in a roundabout way when the Code authorizes a simple remedy by demurrer.
The judgment of the Appellate Division should he affirmed, with costs.