Singer & Goodrich Co. v. Hardy , 2 N.Y. City Ct. Rep. 223 ( 1886 )

McAdam, Ch. J.

The debt, although contracted for the benefit of the assigned estate, charged the defendant individually (20 Hun., 114; 47 N. Y. 363); and the action, both by its title and the allegations of the complaint, appears to be against the defendant in his official capacity. The defendant concedes that individually he is chargeable with the debt, and the technical objection that the action was improperly brought against him in his representative capacity, is practically his only defense.

Under the circumstances, and in furtherance of justice (for technical pleas are not favored), an amendment of the pleadings will be allowed, so as to make the action one against the defendant individually; on condition, however, that the plaintiff waives his taxable costs and disbursements. The question came up on demurrer in 47 N. Y. 363, and the court (at p. 367) said: “ The action cannot be converted into one against the defendants individually by the judgment of the court on the demurrer,” but concedes that the objection might have been obvitated by amendment, if the question had come up in proper form. The amendment may be made at the trial. (Code, § 540), and' the terms imposed as a condition remove all possible claim that the amendment prejudices any legal rights of the defendant.

The plaintiff (upofi filing the stipulation) is entitled to a verdict for $420.23, the amount claimed, and interest, but under the stipulation, without costs.

Personal Liability of Representatives.

An executor, administrator or general assignee, is individually responsible for the debts which he contracts in the management of his estate. (Wilcox v. Smith, 26 Barb 316; Bowman v. Tallman, 2 Robt. 385; Mygatt v. Wilcox, 1 Lans. 55; 7 Weekly Dig. 390; 34 Legal Intelligence, 382; Moran v. Risley, 1 City Court R. 229; Ferrin v. Myrick, 41 N. Y. 315; Schmittler v. Simon, 101 N. Y. 554).