
    John McCue, Plaintiff, v. Elizabeth Finck, as Executrix, and August Finck, as Executor, Etc., and Individually, Defendants.
    (Supreme Court, New York Trial Term,
    June, 1897.)
    1. Negligence — Complaint against an executor conducting a business.
    Where a .complaint alleges that the plaintiff!, a police officer, was run down and injured by a brewery truck, driven by a servant who was employed by August Finck, and it further appears that by the will of Andrew Finck, August Finck was directed to conduct his business after his death, and the complaint is directed against August Finck, individually and as executor, and also against the executrix of Andrew Finck, individually and as executrix, it is not maintainable-, as the estate of the testator cannot ,be made liable for the negligent act of a servant employed by August Finck, and the liability, if any, is upon him individually.
    2. Same — Abatement.
    Where it is shown that the executrix of Andrew Finck died after ■the suit was brought, any cause "of action which existed against her is abated by the fact of her death.
    Action to recover damages for negligence of defendants’ servants.
    E. M. Welch, for plaintiff.
    A. P. Fitch, for defendants.
   McAdam, J.

The action is against the executrix and executor of the estate of Andrew Finck, in their representative capacity and as individuals, to charge the estate and the defendants personally with the result of an accident alleged to have occurred by reason of the negligence of the defendants’ servant, whereby the plaintiff, a police officer, was run down and injured by a brewery truck driven by said employee. The ground upon which the plaintiff seeks to charge the defendants in their representative capacity is that the testator by his will directed that his business be conducted after his death by August Finck, one of the defendants. ¡Notwithstanding this provision of the will, August Finck, if answerable for the tort complained of, became liable individually, and not in his representative character. 7 Am. & Eng. Ency. of Law, 342, 344; Donohue v. Kendall,50 N.Y. Super. Ct. 386; affirmed, 98 N. Y. 635; Willis v. Sharp, 113 id. 591; Kenyon v. Olney, 39 N. Y. St. Repr. 841; In re Rumsey, 4 id. 453; Delaware, L. & W. R. R. Co. v. Gilbert, 44 Hun, 201; Wakeman v. Hazleton, 3 Barb. Ch. 148; People v. Townsend, 3 Hill, 479. The liability is not founded on any act of the testator, but on the contractual relation of master and servant which existed between August Finck, as master, on the one hand, and the driver, as servant, on the other. 1 Shearm. & Redf. on Neg. (4th ed.), § 141; 8 Wait’s Act. & Def. 27, 399; 1 id. 287. The executrix died after suit brought, and if any cause of action existed against her it abated on her death. The complaint contains no cause of action against the estate of the testator, and even if it did its union with a demand for the same relief against the defendants individually would make it bad for duplicity. Dicey on Parties (2d. Am. ed.), marg, p. 322; Pugsley v. Aiken, 14 Barb. 114. The case does not fall within the special provisions of section 1815 of the Code, because the facts alleged do not show a liability in a representative capacity, nor make it uncertain, whether it so existed or was against the representatives individually. On the contrary, it clearly appears that whatever liability existed is against August Finck individually, and not otherwise. An executor may by his act or neglect create in favor of another an obligation against himself, but he cannot, as a rule, create a liability against the estate he represents. He is not an agent, for death terminates agency. And it is a self-evident proposition that a dead man can neither create obligations nor authorize others to create them for him. Liquidation and winding up of earthly affairs begin at death. Obligations created thereafter are acts of the living, for which they become responsible, in the expectation perhaps of reimbursement, which may or may not follow, according to circumstances. There can be no misunderstanding as to the present form of the action. It is against the defendants, both as executors and individually. It is not, therefore, a case wherein the designation executors, etc., is merely descriptio personae (Donohue v. Kendall, supra), but one in which a recovery is sought against the defendants in their representative and individual capacities, upon the mistaken notion that the estate and its representatives are joint tortfeasors. The objection taken to the form of the complaint requires that it should be amended by continuing the action against August Finck individually, with appropriate allegations to charge him in some legal form with, the negligence complained of; the amended pleading to be served within twenty days, and the answer to be served within twenty days thereafter, and the amendment to be without prejudice to the proceedings already had, so as not to unreasonably delay the trial.

Ordered accordingly.  