Masten v. Blackwell

New York Supreme Court

Masten v. Blackwell

15 N.Y. Sup. Ct. 313

DecidedSeptember 15, 1876

StatusPublished

This text of 15 N.Y. Sup. Ct. 313 (Masten v. Blackwell) 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.

Bluebook

Masten v. Blackwell, 15 N.Y. Sup. Ct. 313 (N.Y. Super. Ct. 1876).

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Opinion

Per Curiam:

When an action is pending against several joint debtors and one of them dies, the action cannot, with accuracy, be said to survive against the representatives of the deceased debtor. The cause of action which may arise against them is not the simple common-law action on contract, which was originally brought against all the debtors. But it is an action of equitable character which arises on several facts: the original debt; the death of one joint debtor; the appointment of his representatives, and the insolvency of the surviving joint debtors. This, then, is a new action; not a continuance of the old.

This distinction is important. It shows that the representatives of the deceased are entitled to have the claim, thus arising, pre[315]*315sented to them for allowance, or disallowance, according to the statute. They should not be brought in to contest the old action, in which, merely as representatives of the deceased, they cannot be liable.

This is not a question of mere practice, but of legal liability. Perhaps it would be a wise change of the law to make - the representatives of a deceased joint debtor, in all cases, jointly liable with the surviving joint debtors. But that is for the consideration of the legislature.

The order must- be reversed, with ten dollars costs and disbursements.

Present — Learned, P. J., BooKes and Boaedmak, JJ.

Order reversed, with ten dollars costs'and printing.

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Per Curiam:

When an action is pending against several joint debtors and one of them dies, the action cannot, with accuracy, be said to survive against the representatives of the deceased debtor. The cause of action which may arise against them is not the simple common-law action on contract, which was originally brought against all the debtors. But it is an action of equitable character which arises on several facts: the original debt; the death of one joint debtor; the appointment of his representatives, and the insolvency of the surviving joint debtors. This, then, is a new action; not a continuance of the old.

This distinction is important. It shows that the representatives of the deceased are entitled to have the claim, thus arising, pre[315]*315sented to them for allowance, or disallowance, according to the statute. They should not be brought in to contest the old action, in which, merely as representatives of the deceased, they cannot be liable.

This is not a question of mere practice, but of legal liability. Perhaps it would be a wise change of the law to make - the representatives of a deceased joint debtor, in all cases, jointly liable with the surviving joint debtors. But that is for the consideration of the legislature.

The order must- be reversed, with ten dollars costs and disbursements.

Present — Learned, P. J., BooKes and Boaedmak, JJ.

Order reversed, with ten dollars costs'and printing.

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Bluebook (online)

15 N.Y. Sup. Ct. 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masten-v-blackwell-nysupct-1876.