
    Patrick J. Murphy, App'lt, v. Mary Naughton, Individually and as Adm'rx, Resp't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    1. Executors and administrators—Pleading.
    Under § 1815 of the Code, there is no misjoinder of causes of action where defendant is sued for the funeral expenses of her husband both individually and as administratrix.
    2. Same—Funeral expenses.
    An administrator is not liable in his representative capacity for the funeral expenses of his intestate; such liability is personal only.
    Appeal from judgment sustaining demurrer to complaint.
    
      F. Solinger, for app’lt; Kantrowitz & Esberg (M. Esberg, of counsel), for resp’t.
   Van Brunt, P. J.

— This action is brought against Mary Naughton, individually, and as administratrix of the goods, etc., of Thomas J. Naughton, deceased. The complaint alleges the death of Thomas J. Naughton, and the issuance of letters of administration upon his estate to the defendant, and her qualification ; that the plaintiff is an undertaker, and at the request of the defendant furnished casket, hearse, carriages, and other necessaries for the funeral of deceased, which services and material were reasonably worth the sum of $376.90; and that the whole of said sum was due, and judgment was demanded therefor.

The defendant demurred to the complaint upon three separate and distinct grounds: First, that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action; second, that in the complaint two causes of action had been improperly united, to wit, an action against the defendant, Mary ÍTaughton, individually, and an action against her as administratrix; third, that the complaint did not state facts sufficient to constitute a cause of action to charge the defendant as administratrix. The court below sustained the demurrer as to the second and third grounds, and an interlocutory judgment was thereupon entered, from which this appeal is taken.

It is not claimed upon this appeal that the complaint does not state a good cause of action as against the defendant individually, but it is urged that there is no misjoinder of causes of action, for the reason that the facts stated in the complaint constituted but one cause of action; and that, having failed to sustain the demurrer on the first ground, costs should not have been awarded against the appellant. In fhe consideration. of these questions it is necessary to refer to § 1815 of the Code, because cases may exist where an action is brought for but one cause of action in which a person may be sued both in an individual and in a representative capacity. This section, so far as applicable to the case at bar, is as follows:

“ An action may be brought against an executor or administrator personally, and also in his representative capacity, in either of the following cases: First, where the complaint sets forth a cause of action against him in both capacities, or states facts which render it uncertain in which capacity the cause of action exists against him.”

A complaint may, therefore, contain a cause of action against an executor or administrator personally and in his representative capacity, without there being any misjoinder of causes of action. Consequently the court erred in sustaining the demurrer upon the ground of misjoinder of causes of action. But upon an examination of the complaint it will be seen that no cause of action whatever is alleged against the defendant in a representative capacity. She is not liable in her representative capacity for debts incurred subsequent to the death of the deceased, even though they may be incurred in respect to the administration of the estate, and although upon the passage of her accounts such indebtedness might be proper to be allowed to an administratrix. It is only a personal liability, and the defendant could only be charged personally in an action for the funeral expenses. There is, therefore, no cause of action set out against the defendant in her representative capacity. In view of the provisions of the Code, the words “ individually and as administratrix ” cannot be treated as mere surplusage, because it was the evident intention of the pleader to hold the defendant liable in both capacities ; the allegation in the complaint of the appointment of the defendant as administratrix being only pertinent to a claim against her in her representative capacity. In view of the fact that no cause of action was set out against the defendant in such representative capacity, we do not think that the court erred in allowing costs upon the demurrer. The judgment must, therefore, be modified by sustaining the demurrer only as to the third ground, and, as modified, affirmed, without costs of this appeal to either party.

O’Brien and Follett, JJ., concur.  