Rowe v. Rowe

92 N.Y.S. 491

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1905
• Status: Published

Opinion

CHASE, J.

Upon a trial of an issue of law by the court or a referee a decision or report must be filed. Code Civ. Proc. §§ 1010, 1019. The decision of the court or the report of a referee upon the trial of a ■demurrer must direct the final or interlocutory judgment to be entered thereupon, but it is not necessary to make any findings of fact. Code Civ. Proc. § 1021. If the decision is entered in the form of an order (Wright v. Chapin, 74 Hun, 521, 26 N. Y. Supp. 825; Garret v. Wood, 57 App. Div. 242, 68 N. Y. Supp. 157), an appeal cannot be taken therefrom. Evans v. Ogsbury, 2 App. Div. 557, 37 N. Y. Supp. 1104; Unckles v. Hentz, 19 App. Div. 165, 45 N. Y. Supp. 894; Kley v. Higgins, 59 App. Div. 581, 69 N. Y. Supp. 826. The will does not, in terms, recognize any distinction between the offices of executor and trustee. It only speaks of real property, and that is all given to the •executors in trust. Under the will the trusts are vested in Benjamin Rowe and Frederick Rowe in their capacity as executors, and are attached to the office. Earle v. Earle, 93 N. Y. 104. By accepting and ■qualifying as executors, they accepted the trusts conferred upon them by the will. Earle v. Earle, supra. It would, perhaps, be wise and good practice in a case like this to add to the statement of the representative character of the defendants the words “as trustees” in addition to the words “as executors,” but the failure to do so is not a sufficient reason for sustaining a demurrer to the complaint, where, as in this case, the complaint contains a copy of the will, and further allegations showing that as executors the defendants have accepted the trusts created by the will Knox v. Met. Elevated Ry. Co., 58 Hun, 517, 12 N. Y. Supp. 848; Ducker v. Rapp, 67 N. Y. 464; Berolzheimer v. Strauss, 7 Civ. Proc. 225; Bird v. Lamphear, 11 App. Div. 613, 42 N. Y. Supp. 623. A demurrer runs to the allegations of the complaint, and not to the summons, or to the caption of the complaint. Soldiers’ Home v. Sage, 11 Misc. Rep. 159, 33 N. Y. Supp. 549.

The appeal from the order should be dismissed and the interlocutory judgment should be affirmed, with costs, with leave to appellants to withdraw the demurrer and serve an answer on payment of the costs in this court and in the court below. All concur.