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years before the accident he cleaned and attended to the fires and led engines, and performed these duties under the instructions of a hostler who remained in the cab until he learned the work. The contention that the hostler was incompetent is based on this evidence and on the further facts that he never otherwise learned the trade of a locomotive engineer; that he could not speak English very well, although he was able to converse with his fellow workmen sufficiently, and that he testified that he did not know what a valve or piston rod was, but that he understood "everything about the engine," and that he knew what a cylinder and driving rods and lever were, and their functions, and how to let on steam and to shut off the steam and the effect thereof. On this evidence the court was duly requested by the counsel for the defendant to instruct the jury that the evidence did not show that the hostler was incompetent to move the engine around the yard in question. The request was refused and an exception was duly taken.

I am of opinion that this was error. The jury may well have been misled by the failure of the court to so instruct them. The evidence would not warrant a finding that the hostler was not competent to operate the engine to the limited extent necessary for the purposes stated. He knew how to let on steam and the effect of letting it on slowly or rapidly and how to shut it off and the effect thereof, and how to move the lever to go ahead and to go backward. There is nothing to indicate that the accident was in any manner caused by his inability to understand how to operate the engine. Moreover, the question of incompetency of an employé is only important as depriving the defendant of the defense that the accident was caused by the negligence of a coemployé. If a coemployé whose negligence causes an accident was incompetent, and his incompetence was known or should have been known to his employer, then the employer is liable for his acts, but otherwise not at common law. In the case at bar, however, by virtue of the provisions of the statute, the defendant was precluded from defending on the ground that the negligence, if any, was that of a coemployé; and it became liable for the acts of the hostler, if negligent, regardless of the question of his competency. The only proper question for the consideration of the jury with respect to defendant's negligence in such case, therefore, was whether the engine was negligently operated; and in determining that question it was quite immaterial whether or not the hostler was competent, for, if he was competent, the defendant would be liable if he negligently operated the engine.

The plaintiff rested his case on his own uncorroborated testimony. On the part of the defendant several witnesses testified that the engine was moved at a moderate rate of speed, and that there was no change in the speed as it approached the curve, and the hostler and the man in charge of the turntable testified that plaintiff was moving about on the pilot, and lost his balance and fell. The evidence shows that the engine was close to the turntable, on which it would naturally come to a stop for the purpose of being turned around, when the accident happened, and that it only moved about eight feet after the accident before stopping. If the verdict is predicated on the incom

petency of the hostler, it is not supported by the evidence; and, if predicated on his negligence, it is against the weight of the evidence. It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

SCOTT, MILLER, and DOWLING, JJ., concur.

INGRAHAM, P. J. I concur with Mr. Justice LAUGHLIN, but I also think the judgment should be reversed on the ground that the evidence does not sustain a finding that the defendant or the man operating this locomotive was negligent.

There are various conclusions drawn by the plaintiff in his testimony as to the speed of the engine, but I do not think there was satisfactorily established any fact that would justify a finding that the speed was excessive under the circumstances or that the plaintiff's fall from the engine was caused by any failure of the person operating it to exercise care in its management. On the whole case I think at the close of the defendant's testimony a verdict should have been directed for the defendant.


(Supreme Court, Appellate Division, First Department.

December 29, 1911.)


A cause of action, which arose in the course of the carrying on by an executrix of the business of her deceased in his name, was personal to the executrix, and suit thereon could not be brought by her in her representative capacity.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 1666-1672; Dec. Dig. § 427.*]

Ingraham, P. J., and Laughlin, J., dissenting.

Appeal from Trial Term, New York County.

Action by Lillian B. Leavitt, as executrix, etc., against the James F. Scholes Company. From a judgment for plaintiff and an order. denying a motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered.


Decker, Allen & Storm, for appellant.
Gerald B. Rosenheim, for respondent.

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 For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

is personal to the executor, and not one belonging to the estate. Austin v. Munroe, 47 N. Y. 360; Willis v. Sharp, 113 N. Y. 591, 21 N. E. 705, 4 L. R. A. 493; O'Brien v. Jackson, 167 N. Y. 31, 60 N. E. 238. 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 be reversed, and a new trial granted, with costs to appellant to abide

the event.

MILLER and DOWLING, JJ., concur.

LAUGHLIN, J. At the commencement of the trial, after counsel for the plaintiff had opened the case, counsel for appellant moved to dismiss the complaint on the ground that the cause of action was not vested in the plaintiff as executrix, but individually, since it appeared that the negligence of the appellant which caused the damages was in the execution of a contract made by the plaintiff with the appellant in conducting the business of the estate as executrix. motion was denied, and an exception thereto was duly taken. plaintiff then offered evidence tending to establish the facts alleged in the complaint, and the appellant introduced evidence; but the record shows that the evidence in the main has been omitted, for the reason. as stated in the record, that:



"The appellant desires to review on this appeal only the ruling of the court on the motion to dismiss, on the ground that the action should have been brought by the plaintiff in her individual capacity, instead of as executrix."

At the close of the evidence, counsel for the appellant renewed his motion to dismiss "on the ground that the plaintiff, as executrix, is not the proper party plaintiff," and to the denial of this motion duly excepted.

Counsel for the respondent attempts in the first instance to sustain the judgment on the ground that, if the action should have been brought by the plaintiff individually and not as executrix, this relates to her legal capacity to sue, and the objection should have been taken by demurrer or answer, and not having been so taken was waived. Want of legal capacity to sue is a ground of demurrer, where the incapacity appears on the face of the complaint (Code of Civil Procedure, § 488, subd. 3), and where it does not appear on the face of the complaint the objection may be taken by answer (Code Civ. Proc. § 498), and, if such objection is not taken by demurrer or answer, it is waived (Code Civ. Proc. § 499). It was held, in White v. Joy, 13 N. Y. 83, that where an action is brought in a representative capacity, and the complaint fails to allege facts showing that the plaintiff is the representative he claims to be, this is want of legal capacity to sue, the objection to which could be taken only in the manner provided by the provisions of the Code of Procedure corresponding to those of

the present Code of Civil Procedure. There are many decisions in this jurisdiction which sustain the contention that, where a plaintiff sues in a representative capacity, an objection that the cause of action is vested in him individually or in another relates to his legal capacity to sue, and is waived if not taken by demurrer or answer in the manner stated, and these authorities have not been expressly overruled. Perkins v. Stimmel, 114 N. Y. 359, 21 N. E. 729, 11 Am. St. Rep. 659; Nanz v. Oakley, 122 N. Y. 631, 25 N. E. 263; Varnum v. Taylor, 59 Hun 554, 14 N. Y. Supp. 242; Town of Pierrepont v. Loveless, 4 Hun, 696, reversed on another ground 72 N. Y. 211; O'Reilly, Skelly & Fogarty Co. v. Greene, 18 Misc. Rep. 423, 41 N. Y. Supp. 1056; Palmer v. Roods, 116 App. Div. 66, 101 N. Y. Supp. 186. The Court of Appeals, however, without referring to or discussing the authorities to the contrary, has held in two cases, decided since the decisions above cited with the exception of the case of Palmer v. Roods, supra, that want of legal capacity to sue, within the contemplation of sections 488, 490, 498, and 499 of the Code of Civil Procedure, relates only to incapacity or disqualification on the part of the plaintiff to maintain any action in the capacity in which he sues, or, if the suit be brought in a representative capacity, to failure to show his due appointment to such representative capacity and qualification therein. Ward v. Petrie, 157 N. Y. 301, 313, 51 N. E. 1002, 68 Am. St. Rep. 790; Ullman v. Cameron, 186 N. Y. 339, 78 N. E. 1074, 116 Am. St. Rep. 553. In Cohen v. American Surety Co., 123 App. Div. 519, 108 N. Y. Supp. 385, this court recently accepted and followed the decisions of the Court of Appeals last cited, as authoritative on this point, and our decision was affirmed by the Court of Appeals, although the opinion of that court does not discuss the question, which, however, was necessarily presented. Cohen v. American Surety Co., 192 N. Y. 227, 84 N. E. 947. And the Appellate Division in the Fourth Department, in Leggett v. Stevens, 77 App. Div. 612, 79 N. Y. Supp. 289, has taken the same view of the law on this question. It must therefore be deemed settled by authority that where a complaint states facts showing a cause of action, but not in the plaintiff in the capacity in which he sues, it is not a case of want of legal capacity in the plaintiff to sue, and the objection need not be taken by demurrer or answer on that ground, but may be taken by demurrer on the ground that the complaint fails to state facts sufficient to constitute a cause of action, or upon the trial by a motion to dismiss as was done in the case at bar.

The cause of action set forth in the complaint arose out of a contract made by the plaintiff with the defendant on the 20th day of May, 1906, five years after letters testamentary were issued to her, and therefore the cause of action was not one which was vested in her testator. It is to be inferred from the allegations of the complaint that the contract was made by the plaintiff in form in her representative capacity, for that is the capacity in which she brings the action, and it is alleged that the contract was made by the plaintiff, and it was proved that it was made in conducting the business of the estate. It does not appear whether or not the executrix was directed or au

thorized by the will to continue the business of the testator. Subject to the rights of creditors, a testator may authorize his executor to continue his business, in which event his property invested in the business at the time of his death would be liable to the creditors for obligations incurred by the executor in the conduct of the business, and, if the testator expressly authorized the use of his general assets in the business, they also would be liable to such creditors, but otherwise not. Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493. But even in such circumstances the debts contracted by the executor, like other debts and obligations contracted by him in the administration of the estate, would bind him individually. Austin v. Munroe, 47 N. Y. 360.

Since the title of the action shows that it is brought in a representative capacity, doubtless after judgment the words showing the representative capacity may not, collaterally at least, be regarded as surplusage, for they stamp the recovery as had in that capacity, and the judgment would not be binding on the executrix in her individual capacity concerning matters or things in which the estate of her testator was not interested. Leonard v. Pierce, 182 N. Y. 431, 75 N. E. 313, 1 L. R. A. (N. S.) 161; Werner v. Wheeler, 142 App. Div. 358, 363, 127 N. Y. Supp. 158. See, also, Hone v. De Peyster, 106 N. Y. 645, 13 N. E. 778. But the plaintiff as executrix and individually is not regarded in law, as respects a cause of action for which she is accountable to the estate, as different persons, and an amendment striking out or inserting words indicating that the action is brought by or against a party in a representative capacity neither constitutes the substitution of a new cause of action nor of a new party, for the service of process is made on the individual, no matter whether he is sued individually or in a representative capacity, and when he comes into court, or is brought into court in a representative capacity, he is also deemed before the court individually for the purpose of making any amendment necessary to change the capacity in which he sues or is sued. Tighe v. Pope, 16 Hun, 180; Boyd v. U. S. T. Co., 187 N. Y. 262, 270, 79 N. E. 999, 9 L. R. A. (N. S.) 399, 116 Am. St. Rep. 599.

Aside from the question with respect to the capacity in which the plaintiff brings the action, it is to be inferred from the record, and must be presumed, that the merits of the cause of action set forth in the complaint have been litigated and properly determined. Certainly the Court at Special Term could have allowed an amendment by striking the words from the title of the action which show that it is brought in a representative capacity, and doubtless this could have been done on the trial, and, if necessary, might be allowed on the appeal. I am of opinion, however, that the judgment may be sustained in the form in which it has been recovered. It was the rule, prior to the enactment of section 1814 of the Code of Civil Procedure, that all actions or causes of action which were vested in or accrued against the decedent in his lifetime must be brought by or against his personal representative in a representative capacity, and that causes of action arising after the decedent's death and out of the administration of the estate were vested in the administrator or executor individually,

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