Watson v. Moriarty

Me AD AM, J. The complaint charges that in November, 1894, the plaintiff left on storage with John Moriarty, the testator, certain personal property belonging to her, of the value of $1,000; that Moriarty died about April, 1897; that the property came into the hands of the defendant, as Moriarty’s executor; and that he refused to give it up on demand. The action is against the defendant in Ms representative capacity, as executor, and the judgment sought for is one to reach the assets of the estate he represents. The complaint was dismissed at the trial upon the ground that the estate of Moriarty could not be charged for a wrong committed by the defendant as executor; the remedy being against the defendant personally, and not in his representative capacity. This ruling was right (Norling v. Allee, 31 N. Y. St. Rep. 412; Keating v. Stevenson, 21 App. Div. 604, 47 N. Y. Supp. 847; Donohue v. Kendall, 50 N. Y. Super. Ct. 386; McCue v. Finck, 20 Misc. Rep. 506, 46 N. Y. Supp. 242), and the motion for a new trial must be denied. No costs.