Salters v. Pruyn

By the Court.—Ingraham, P. J. So far as the motion was to dismiss the complaint as to defendant Yence, the order appealed from was” proper-. She noticed the cause for hearing, and she had a right to the dismissal of the complaint as to her, if the plaintiff did not proceed with the cause when it was reached. As to the defendant Pruyn, I think it was irregular for him to proceed alone without the other executors, or to put in a separate answer. The statute is positive that in an action against several executors, they shall all be considered as one person, and such of them as shall be first served with process, or shall first appear, shall answer the plaintiff. The intent of the statute was to prevent what has taken place here, and to require the executors to act together in the defence of the action. I do not mean to say, that the court might not allow a different course of proceeding where there was any fraud contemplated on the estate; but if there can be any such relief, other than an application to remove the executor, it must be on a distinct application to the court, and not in this way. Whether executors can separate in their defences in a case [227] where no personal liability is sought to be enforced against them, may well be doubted. The defendant Pruyn was irregular in noticing the case alone, without the other executors. I think also he was wrong in putting in a separate answer; but the plaintiff has waived his objection thereto by not moving to strike it out, or by not returning it. The order appealed from as to defendant Yence must be affirmed, with $10 costs; and reversed as to defendant Pruyn, without costs. Cleeke and Babnabd, JJ., concurred.