
    Enos G. Laney, Individually and as Administrator, etc., of James Laney, Deceased, Resp’t, v. Mary K. Laney, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    1. Pleading — Set-off of advances against decree of surrogate on accounting.
    The complaint alleged the appointment of plaintiff as administrator, a settlement of his accounts and the entry of a decree directing payment to defendant of a certain sum; that plaintiff has advanced to defendant sums aggregating more than the amount decreed to be paid; that defendant has filed a transcript of the decree, and issued execution thereonyrhicli has been levied on plaintiff’s personal property, and demanded judgment that the advances be applied in extinguishment of the judgment and an injunction to prevent a sale on the execution. Held, that the complaint sufficiently stated a cause of action.
    3. Same—Parties.
    As the decree, by its docketing and the levy, reached his individual property, it was necessary that plaintiff should bring the action both in his individual and his representive capacity, to obtain full relief.
    3. Same—Demurrer.
    The omission of formal allegations cannot be taken advantage of by demurrer. The remedy for indefiniteness or uncertainty is by motion, not demurrer.
    Appeal by the defendant from an interlocutory judgment overruling a demurrer to the complaint at the Monroe special term in April, 1890; also from an order denying the defendant’s motion to dissolve an injunction.
    
      J. & Q.VanVoorhis, for app’lt; Theodore Bacon, for resp’t.
   Corlett, J.

The complaint alleges that on the 20th day of March, 1885, he was appointed by the surrogate of Monroe county one of the administrators of James Laney, deceased. On the 14th day of March, 1887, the plaintiff presented to the surrogate’s court of that county his accounts for settlement. In February, 1888, a decree was made by the surrogate’s court settling the plaintiff’s account as administrator, and directing the payment to the defendant of $5,855.56 for her share in the residue of the estate of the deceased. In December, 1889, the decree was modified so as to reduce the amount to $5,381.30.

The complaint alleges that between the 4th day of April, 1885, and the 6th day of February, 1890, the plaintiff advanced to the defendant at- various times and in various amounts a large sum of money, which on the 20th day of February, 1888, amounted to the sum of $7,292.57; also that between the 20th day of February, 1888, and the 6th day of March, 1890, the plaintiff advanced to the defendant at various times moneys to the amount of $3,156.50; that no part has been paid or accounted for by the defendant; that in March, 1890, the defendant obtained a transcript of the surrogate’s decree and filed it in the Monroe county clerk’s office, and caused it to be docketed as a judgment of the supreme court, and that she caused an execution to be issued upon the judgment for $5,881.20, which recited the surrogate’s decree, etc., and the sheriff was commanded to collect with interest; that the sheriff made a levy on the plaintiff’s personal property, which still continues.

The complaint then proceeds to claim a judgment to the effect that the plaintiff’s advances should be applied in extinguishment of the judgment, and in the meantime he obtained an injunction preventing the sale of the property. The defendant demurred to the complaint upon several grounds, one of wliich was that the plaintiff in his individual capacity could not be joined with himself in his representative capacity ; also upon the ground that the plaintiff failed to state a cause of action. The demurrer was overruled and interlocutory judgment entered for the plaintiff, and the motion to dissolve the injunction was also denied.

The complaint alleges with sufficient certainty the payment of the moneys therein stated, and obviously meant, that she had re- ’ ceived more than enough out of the estate to pay her decree, and that it should be adjudged satisfied.

The complaint alleges that some of the moneys were advanced to the plaintiff before the decree in the surrogate’s court, and some afterwards. The matters alleged in the complaint could not be tried in the surrogate’s court so as to secure the moneys to be set off against the defendant’s claim. Matter of Livingston, 27 Hun, 607; Stilwell v. Carpenter, 59 N. Y., 414.

In such cases the party having an equitable set-off can come into this court for relief. N. Y. & H. R. R. Co. v. Haws, 56 N. Y., 175; Pomeroy’s Equity Jurisprudence, § lo6.

The objection that the administrator was improperly joined with himself as an individual is not well taken. The decree was against him as administrator, but the docketing and levying reached his individual property. It was necessary, therefore, that he should be plaintiff in both capacities to obtain full relief.

The criticism in the exhaustive brief of the learned counsel for the appellant, that the complaint is insufficient in omitting formal allegations, is answered by Marie et al. v. Garrison, 83 N. Y., 14; Lorillard v. Clyde, 86 id., 384.

The allegations in the complaint show that the plaintiff had advanced at various times to the defendant more than enough money belonging to the estate of the deceased to equitably extinguish her claim and judgment. If it failed in any way to state any of the facts with sufficient fullness or certainty, the remedy was by motion, not demurrer.

The judgment must be affirmed; also the order denying the defendant’s motion to dissolve the injunction. The continuance of the injunction necessarily depends upon the merits of the other branch of the case.

Dwight, P. J., and Macomber, J., concur.  