
    Henry Wehle, Rec’r, Pl’ff, v. John V. Koch, Ex’r, Deft (2 cases).
    
      (New York Superior Court, General Term,
    
    
      Filed April 11, 1892.)
    
    1. Pleading—Demurrer.
    On demurrer to an answer the defendant may show that on the record plaintiff is not entitled to final judgment.
    
      2. Same—Action against executor.
    In an action by the receiver of a legatee against an executor the complaint showed that the debtor was indebted to the testator, and. that the executor had paid him more than the difference between the debt and amount due on the legacy. Held, that it was the duty of the executor to first apply the debt upon the legacy, and as it appeared from the coplaint that he had paid more than the difference, there was nothing due to the legatee or his receiver, and the complaint was properly dismissed.
    Appeals by defendant from order sustaining demurrer to so much of the answer as set up want of capacity of the plaintiff to sue, as leave to sue was not contained in the order of appointment, and by plaintiff from judgment dismissing the complaint.
    The following is the opinion at special term :
    McAdam, J. —The The moneys in the hands of the defendant are held by him in trust under the will of John V. Koch. The trust is therefore one created by a person other than the judgment debtor. Code, § 187.9. A judgment creditor might nevertheless by bill in equity reach any surplus that had accumulated in the hands of the trustees, and provision might be made in the judgment determining what would be a reasonable allowance for the cestui que trust, and directing the application towards the judgment of any future surplus until the same is fully paid, Williams v. Thorn, 70 N. Y., 270; Wait on Fraud. Conv., §§ 45, 360, and a receiver appointed in supplementary proceedings may seemingly maintain such an action. McEwen v. Brewster, 19 Hun, 337, overruling previous decision in same case reported in 17 Hun, 227. But that is not the nature of the present suit. The complaint proceeds on the theory that the judgment debtor was entitled at the time action was commenced, as of right, to money more than sufficient to satisfy the plaintiff’s judgment, and the prayer is for án accounting and decree directing the defendant to satisfy the demand at once. It appears that John V. Koch, the testator, died February 7, 1888, and' by the tenth clause of his will he gives to his son, the judgment debtor, a legacy of $10,000, to be paid in instalments of $1,000 each year, the first to be paid in one year after the decease of the testator. Under this provision the judgment debtor became entitled to $1,000 February 7, 1889, $1,000 February 7, 1890, and $1,000 February 7, 1891, in all $3,000. The complaint further alleges that the judgment debtor owed the testator at the time of his decease $1,829.15, and that the defendant paid the judgment debtor $1,827.10. The two sums, aggregating $3,656.25, exceed the instalments due the judgment debtor when this suit was commenced; hence there was nothing owing to him or his receiver at that time. The legacy to the son did not discharge the debt he owed the testator. Rickets v. Livingston, 2 Johns. Cas., 97, Clark v. Bogardus, 2 Edw. Ch., 387; and cases collated in Redf. Pr. (3d ed.) 579. It was the duty of defendant, as executor, to first apply the debt pro tanto to the ex-tinguishment of the legacy, Stagg v. Beekman, 2 Edw. Ch., at page 92, and he could not postpone or avoid this duty. It is apparent, therefore, that an accounting cannot change these figufes nor alter the result which follows. The plaintiff desired to amend his complaint by omitting the allegations as to the debt. This would simply impose upon the defendant the duty of pleading and burden of pro ving the debt, which might be accomplished by reading in evidence the original complaint in which its existence is affirmatively alleged, Fogg v. Edwards, 20 Hun, 90; Whitney v. Town of Ticonderoga, 24 St. Rep., 950, so that the amendment proposed has nothing of practical utility to commend it. The amendment could not alter the facts, and the application therefor will be denied, and the complaint dismissed, without prejudice to a new action in suitable form at the proper time. Submit findings and order embodying the decision.
    
      Edward Grosse, for pl’ff; William O. Campbell, for def’t.
   Dugro, J.

Of these appeals one is by the defendant from an order sustaining plaintiff’s demurrer to part of the answer, and from the judgment entered thereon. The others are by the plaintiff from an order striking out his amended complaint and from a judgment dismissing the complaint.

The plaintiff’s appeals are decided against him upon the opinion of the learned judge who dismissed the complaint. It follows, that the order sustaining the demurrer, and the judgment thereon, must be reversed, for on a demurrer to an answer the defendant may show that on the face of the record plaintiff is not entitled to final judgment. Parsons v. Hayes, 50 Super. Ct., 29; Genet v. Kissam, 53 id., 43.

Sedgwick, Ch. J., and Gildersleeve, J., concur.  