
    James L. Semon, Emma L. Crane and Hannah E. Semon as Administratrix of the Estate of Charles Semon, Deceased, Plaintiffs, v. Ezra Daggett, Defendant.
    (Supreme Court, Broome Trial Term,
    January, 1909.)
    Executors and administrators — Collection and reduction to possession of property or claims of estate — .Rights, duties and liabilities — Person entitled in general — Next of kin.
    Limitation of actions — Disabilities and exceptions — Suspension in general — Death and administration.
    Parties — Objections and waiver thereof — Waiver of objections — Nonjoinder of parties.
    Where an action was 'brought by two tenants in common upon a judgment recovered for rent by themselves and another named as administratrix of a deceased tenant in common who had died intestate about ten years before, and the fact that there was no administratrix was not discovered until the case was being prepared for trial and the Statute of Limitations had apparently run against the cause of action upon the judgment, the limitation as to the substitution of a representative of the deceased .tenant in common as a party plaintiff was not relieved by section 402 of the Code of 'Civil Procedure.
    Where, after the death of the tenant in common who had died intestate and without creditors, the judgment debtor promised one of the surviving judgment creditors to pay the judgment, they may maintain an action thereon and the representative of the deceased judgment creditor need not be joined as a party plaintiff.
    A defect of parties plaintiff is waived by failure to take the objection by demurrer or answer.
    Action upon a judgment for rent.
    
      Washburn & Sickels, for plaintiffs.
    Stilwell & Decker, for defendant.
   Lyon, J.

The alleged cause of action is upon a judgment of upwards of $1,500, recovered by James L. Semon, Emma L. Crane and Charles Semon against the defendant in the City Court of New York, and docketed in the office of the clerk of that court, in June, 1888, and at once docketed in the clerk’s office of New York county, for rent of premises of which the three judgment creditors were owners as tenants in common. Charles Semon died, intestate, in the year 1898. No administrator of his estate has been appointed, and the naming of Hannah E. Semon as such administratrix was unwarranted. This error was not discovered until the case was being prepared for trial, and the Statute of Limitations had apparently then run against the cause of action upon the judgment. The limitation as to the substitution of a representative of the estate of Charles Semon as a party plaintiff is not relieved by the provision of section 402 of the Code of Civil Procedure. Tompkins v. Austin, 10 N. Y. St. Rep. 339.

Hpon the trial, the summons and complaint were amended by striking therefrom the name of Hannah E. Semon as administratrix and inserting in place of the allegation of her appointment as such, the allegation that said Charles Semon died intestate, and that the plaintiffs James L. Semon and Emma L. Crane are the only next of kin, and the only persons interested in the said judgment, and that no administrator of the estate of Charles Semon has ever been appointed.

A recovery, if had at all, must be had in this action by the surviving judgment creditors as sole parties plaintiff.

From the evidence it appears that the deceased, Charles Semon, was an incompetent person of weak mind, who had never transacted any business, had never married, and that the two surviving plaintiffs, who are his brother and sister, are his only heirs at law and next of kin. From the facts it may reasonably be inferred that there were no creditors of his estate. If so, the Statute of Limitations must Ions' since have run against their claims. It further appears that, since the death of Charles Semon, the defendant has promised the plaintiff James L. Semon to pay the judgment. The case is thus brought, in most material respects, within the decision of Segelken v. Meyer, 94 N. Y. 473.

Also, while the answer is in effect a general denial, and puts in issue the allegation of the complaint as to the appointment of Hannah E. Semon as administratrix, yet it does not raise the objection that, by reason thereof, there is a defect of parties plaintiff. Failing to take such an objection by demurrer or answer is a waiver thereof. Code Civ. Pro., § 499; Merritt v. Walsh, 32 N. Y. 685; Jones v. DeCoursey, 12 App. Div. 164.

Furthermore, it is held that the surviving judgment creditors are the only proper parties plaintiff, and that the representative of the deceased judgment creditor should not be joined. Bucknam v. Brett, 35 Barb. 596; Freeman v. Scofield, 16 N. J. Eq. 28.

Judgment should be entered in favor of the surviving judgment creditors against the defendant for the sum demanded in the complaint.

Judgment accordingly.  