Bentz v. Thurber , 1 Thomp. & Cook 645 ( 1873 )

Brady, J.

This is an action at law brought against the executors of one of several joint makers of a promissory note, without adding the surviving makers, and without alleging that they were insolvent, or that the plaintiff had exhausted his remedies against them, or had taken any steps,_ or made any efforts, to collect his demand from such survivors or either of them.

Dpon the trial the defendants moved to dismiss the complaint upon the ground that the complaint did not contain facts sufficient to constitute a cause of action, hut the motion was overruled and the defendants excepted.

The defendants then moved for the affirmative of the issue, and the motion was granted, the court thus again -deciding that the plaintiff had nothing to prove, to maintain his action against the personal representatives of the deceased joint maker. Whatever may be the rule upon a proper state of facts authorizing the application of equitable principles, there can be no doubt that at law, an action of this kind cannot be maintained. Voorhis v. Childs, Ex’r, 17 N. Y. 354; Richter v. Poppenhausen, 42 id. 373; Getty v. Binsse, 49 id. 385. In the first case cited, the action was brought against the survivors of a firm and the executor of a deceased member, without allegations either of action against surviving partners or of their insolvency. The court reserved the question whether the insolvency of the survivors or of the estate, would justify a joint action against the survivors and the representatives of the deceased partner. In the second case it was held that the executor of a deceased partner, could not he joined in an action at law to collect a partnership indebtedness, and it was declared that the creditor must exhaust his remedy against the survivors in the first instance, and having failed to collect his debt, may then resort to equity in a proceeding against the personal representatives of the deceased partner.

In Getty v. Binsse, the last case cited, it was held that in case of a joint obligation if one of the obligors die his representatives are at law discharged, and the survivor alone can be sued. The judgment was unanimous.

* It is very clear, on the authority of these cases, that an action at law such as this cannot be maintained against the personal representatives of the deceased joint obligor.

If the plaintiff have any remedy against them, it is in equity, and he cannot change the character of the action from one at law to one in equity upon appeal. Voorhis v. Childs, Ex’r, supra. It is no response to this view that the answer alleges that the other makers of the notes were wholly insolvent and without credit at the time the notes were made.

The question is not whether they were then insolvent, hut whether they were so at the commencement of this action.

It may be that the purchase made by these notes placed them in funds or removed their insolvency. If it were otherwise, however, it would make no difference.

The action, in its present form, cannot be maintained even if they were insolvent at the time the action was commenced.

The relief, if any, against the personal representatives is in equity, and that form of procedure requires different allegations, proof and forum. Voorhis v. Childs, Ex'r, supra. The verdict should, for these reasons, be set aside.

Ingraham, P. J., and Barrett, J., concurred.

New trial ordered.