Saperstein v. . Ullman

Per Curiam. We are of opinion that the result reached by the majority of the Appellate Division was correct, and that the order of that court granting a new trial must be affirmed. The action was at law against the defendant individually and as executor of his wife’s will. The judgment granted at the Special Term was against the defendant, not individually, but as executor. As the action was at law execution on the judgment would run against the goods of his testatrix. It may well be that an action in equity could be maintained to charge the plaintiff’s claim on such property as the deceased bequeathed to the defendant with which to carry on her business. This action is not of that character, and the trial court has not found what property was employed in the business. The modification of the judgment suggested by the minority of the Appellate Division would, therefore, have been unauthorized, and the proper action was that directed by the majority of the court — a new trial. The order appealed from must be affirmed, and judgment absolute directed for the defendant on the stipulation, with costs.