
    Emma Scheibeler, Appellant, v. Elliott G. Albee and Others, as Trustees and Executors, etc., of Elliott P. Gleason, Deceased, Respondents.
    First Department,
    June 15, 1906.
    Complaint against trustees to recover money received in representative capacity—when trustees liable individually.
    A complaint which alleges that the defendants as trustees and executors agreed to sell and convey a good title to real estate, that the plaintiff’s assignor paid money on account of the contract, and that the defendants failed to give good title or to return the moneys, sets out a good cause of action against the defendants in their representative capacity to recover the moneys advanced by the plaintiff’s assignor. When money is received by trustees in a representative capacity they may be sued in that capacity tó recover it.
    But such trustees are not liable in their representative capacity for damages suffered by the plaintiff’s assignor in searching title although they are liable individually, and a complaint against them in their representative capacity states no cause of action for such damage.
    Appeal by the plaintiff, Emma Scheibeler, from that portion of an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of New York on the 26th day of December, 1905, upon the decision of the court rendered after a trial at the New York.Special Term which dismisses the complaint herein.
    
      Harold Swain, for the appellant.
    
      Roderick Robertson, for the respondents.
   Houghton, J.:

Plaintiff’s complaint avers that her assignor entered into an agreement to purchase, and the defendants, as trustees and executors of the estate of Elliott P. Gleason, deceased, to sell, certain premises at a specified price and give good title thereto, and that such assignor at the time of the execution of the contract paid $1,000 on account of the purchase price thereof; that defendants failed to give good title or to repay such moneys advanced, and judgment is demanded for this money together with $500 expended in examination of title and for counsel fee connected therewith.

Amongst the defenses set up by the defendants ivas that denominated “ Third,” which plead the representative capacity of the defendants as trustees and executors of the estate of Elliott P. Gleason, deceased, and set forth the names and residences of the persons interested in the estate of the deceased, and in the premises which were the subject of the contract, and averred that each was a proper and necessary party to the action.

The plaintiff demurred to this defense, and on "such demurrer coming on for trial the defendants attacked the plaintiff’s complaint on the ground that it did not state a cause of action against the defendants in their representative capacity. The trial court held that the plaintiff’s complaint did not state a cause of action because the defendants were not liable and could not be sued in their representative capacity as trustees and executors, but if liable at all were liable as individuals and not in their representative capacity.

To the complaint is annexed the contract which the defendants entered into and under which they received the $1,000 set forth in the complaint, and it acknowledges the receipt of that sum. In this agreement they are described as trustees and executors, and they executed it as such. The premises bargained to be sold belonged to defendants’ testator and came toi their hands under his will.

The appellant urges that the court erred in holding that her complaint did not state any cause of action whatever against the defendants in their representative capacity, and insists that it is a good pleading at least as to the $1,000 paid, because the averments in connection with the contract which is annexed and made a part of the pleading, show that this money was received by the defendants in their representative capacity, and that the plaintiff has the right, therefore, to recover it from them in the same capacity.

We think this contention must be true. The $1,000 was lawfully received by the defendants in their representative capacity in dealing concerning the property of their testator. The averments of the complaint show that they have no right in that capacity now to retain such money, because they were unable to give good title to the premises which they contracted to convey. The obligation to repay this money does not arise out of a pledge of the credit of the estate of the testator. Such pledging of credit would be without authority and would bind the person making it individually instead of as a representative. The defendants having received the money in their representative capacity, an action can he maintained against them in that same capacity for its recovery. (Dunham v. Fitch, 48 App. Div. 321; Wall v. Kellogg's Executors, 16 N. Y. 385; De Valengin's Administrators v. Duffy, 14 Pet. 282.)

The pleading comes within the exception pointed out in Matter of Van Slooten v. Dodge (145 N. Y. 327), and O'Brien v. Jackson (167 id. 31), upon which authorities defendants rely. In the latter case, in commenting upon Wall v. Kellogg's Executors (supra), which was approved as illustrating an exception to the general rule, the court says that it there appeared that “ the funds which it was sought to recover from the executors were received by them in their executorial capacity.”

This rule would not apply to the recovery of the $500 damages claimed, but the complaint stating a good cause of action against the defendants in their representative capacity for a specific sum, separable from the other amount demanded, its dismissal on the ground that it stated no cause of action was error, for which the judgment, so far as appealed from, should be reversed, with costs.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment, so far as appealed from, reversed, with costs. Order filed.  