Leavitt v. James F. Scholes Co.

Scott, J.: In my opinion it was error to deny the motion to dismiss the complaint. It appears from the complaint and the epitome of the evidence printed in the .case that plaintiff is carrying on the business formerly carried on by her decedent, and is doing so under his name. The property which is the subject of this action was purchased by her in the course of such business. It is well settled, as I understand it, that a cause of action arising-under such circumstances is personal to the executor, and not one belonging to the estate. {Austin v. Munro, 47 N. Y. 360; Willis v. Sharp, 113 id. 591; O’Brien v. Jackson, 167 id. 31.) •This is not a case where the goods are shown to have belonged to the decedent in his lifetime, and the injury was effected after the death. It is not, therefore, one of the class of cases in which it has been held that an action might be brought either by the executor individually or in his representative capacity. In my opinion the judgment and order appealed from should he reversed and a new trial granted, with costs to appellant to abide the event. Miller and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented. ■