Kley v. Higgins

Rumsey, J.: There is no authority for an appeal from an order, sustaining or overruling a demurrer. So much, therefore, of the appeal as is taken from the order must" be dismissed, with ten dollars costs. Two objections are taken to the complaint! In the first place it is alleged that it appears that there was no consideration for the agreement upon which the action is brought. This objection is not well taken. The contract was that Healy would pay to the plaintiff a certain sum of money in consideration of the dismissal of an appeal which had been taken by her, or if the judgment appealed from [583] should be affirmed. The plaintiff then alleges that her attorneys, having refused to consent to the dismissal of the appeal, she, at the request of Healy, retained counsel to argue the appeal for him, the. result being that the judgment was affirmed, but that Healy refused to pay her the money. This is clearly a sufficient consideration for the contract upon which the action is founded. But the defendants insist upon a technical objection to this complaint, which is well taken, and because of which we must reverse this judgment and sustain the demurrer. The action is brought upon a contract made by John W. Healy in. his lifetime. The defendants are described in the title of the action as executor and executrix of Healy. It is alleged in the complaint that Healy died having made a last will and testament which was admitted to probate, but there is no allegation in the complaint that any person was nominated as executor in that will, nor is there any allegation that letters testamentary were issued to the defendants or any one else, or that the defendants ever qualified as executors. As they are sought to be charged in this action upon the contract made with Healy, it is absolutely essential that somewhere in the complaint facts should be stated from which it can be inferred that they were his personal representatives. Of course, it is not always necessary that the allegations of the complaint as to the representative character of the defendants should be direct and positive, but it is certainly necessary, if the allegations are not made in that way, that the frame and averments and scope of the complaint must be such as to fix upon the defendants such a character. But nothing of that kind is found in this pleading. It is said that the plaintiff filed with the defendants, as executor and executrix, her claim duly verified, which was rejected, but what claim does not appear; nor is there any suggestion that'the claim was filed with the defendants as executor and executrix of Healy, and when it appeared, as it does, that the claim was rejected, that fact destroyed any inference that the persons with whom the claim was filed conceded that they were the personal representatives of Healy. The case is not within that of Beers v. Shannon (73 N. Y. 292) or Stilwell v. Carpenter (2 Abb. N. C. 238 ; 62 N. Y. 639); and even giving to the allegations of the complaint the very broadest meaning to which they are susceptible, there is nothing which would warrant the inference that the defend [584] ants occupied the representative character in which they are sought to be charged. For that reason the judgmént overruling the demurrer must be reversed, with costs, and judgment entered sustaining: the demurrer, with costs, with leave to the plaintiff to amend the complaint upon payment of the costs in the court below and in this, court. Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs in this, court and in thé court below.