
    John Morris, Jr., and Ellen P. Morris, Executors of John Morris, Deceased, Appellants, v. Nicholas F. Hunken and John Palm, Respondents.
    
      Undertaking on appeal running to an executor ^he may sue upon it in Ms individual capacity —■ it is a contract uoitMn section 8126 of the Code of Civil Procedure • — a default in answering does not preclude an objection that a complaint d,ces not state a cause of action — right to amend — what statement in a notice of appeal of the court appealed to is sufficient.
    
    An action upon an undertaking, given on an appeal by a tenant from a final order made in summary proceedings instituted by an executor as landlord of the demised premises, may be maintained by the executor in his individual capacity; in such an action it is unnecessary for the executor to allege or prove the probate of the will or the issue of letters testamentary.
    
      Semble, that such an undertaking is a contract within section 3126 of the Code of Civil Procedure.
    The failure of the defendants to serve a verified answer to the plaintiff's verified complaint does not, under section 8126 of the Code of Civil Procedure dud under section 1383 of the New York Consolidation Act, which is made applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter, preclude the defendants from interposing, the objection that the complaint does not allege a cause of action.
    Under section 2939 of the Code of Civil Procedure (made applicable to the courts of the city of New York by section 1847 of the New York Consolidation Act}, a justice of the Municipal Court of the city of New York cannot, if he deems a demurrer well founded, dismiss the complaint in an action pending before him, upon the ground that it does not state a cause of action, without giving the plaintiff an-opportunity to amend.
    A notice of appeal from a judgment of the Municipal Court of the city of New York which states that the plaintiff appeals to the “ Supreme Court of the State of New York,” and contains.no reference to the Appellate Division, is sufficient to entitle the latter court to review the judgment appealed from.
    Appeal by the plaintiffs, John Morris, Jr., and another, executors of John Morris, deceased, from a judgment of the Municipal. Court of the city of New York for the first district of the borough of Brooklyn in favor of the defendants, dismissing the verified complaint of the plaintiffs, with costs, on motion of the defendants, no pleadings on their behalf being interposed.
    The notice of appeal served by the appellants stated that they appealed “to the Supreme Court of the State of New York,” and contained no reference to the Appellate Division.
    
      Arnold Charles Weil, for the appellants.
    
      Charles J. Belfer, for the respondents.
   Woodward, J.:

The plaintiffs in this action, as landlords, brought a summary proceeding against Frederick Glaser, tenant, for the possession of. certain ¡3remises in Brooklyn, and on or about the 18th day of: August, 1898, a final order or judgment was made, awarding possession to the plaintiffs. From this judgment Frederick Glaser appealed, the defendants,'it is alleged in the complaint, making and filing their written undertaking whereby they jointly and severally undertook in the sum of $175 that if judgment was rendered against the appellant and execution issued thereon was returned unsatisfied, wholly or in part, they, the said defendants, would pay the amount of the judgment, or the portion thereof remaining unsatisfied, and also that if a final determination was rendered against the appellant, he would pay all rent accruing or to accrue ujion the said premises subsequent to the institution of this special proceeding. ■ Upon the appeal being heard, the judgment of the court below was affirmed and a final determination was rendered against the appellant. An execution was caused to issue, which it is alleged in . the complaint has been returned wholly unsatisfied, and the present action was brought to recover the amount secured by the undertaking, the demand being for $175, together with the costs of the action. '

The plaintiffs served their summons, with a verified complaint, on the 28th day of December, 1898, returnable on the 6th day.of January, 1899. On the return day the defendants appeared by counsel, and, without putting in a verified answer, movéd to dismiss the complaint (1) “ on the ground that the complaint shows that if this action is maintainable, it should be brought by the plaintiffs as executors of John Morris,'deceased; the summons and complaint showYhat the action is brought in an individual capacity and not in a representative capacity, and that the words, executors of John Morris, deceased, are simply descriptive — personally descriptive;” (2) “that'the complaint does not show that the will appointing these executors was ever probated, and that letters testamentary were issued giving the plaintiffs power to sue as executors; furthermore the complaint does not show that letters testamentary were issued by the Surrogate of the state of New York;” (3) that “the complaint does not state facts sufficient to constitute a cause of action for the following reason: It does not allege that a demand was made upon these defendants for the payment of the money alleged to be due and a refusal; the complaint does not show that the money is still due and owing; the complaint does not show that the judgment, wherein the execution was issued, was ever docketed with the clerk of the county of Kings, and no execution can be issued until so docketed ; the complaint does not. allege that the undertaking sued upon in this action was made to run in favor of these plaintiffs, or that the sureties agreed to pay anything to the plaintiffs in this action.” The court dismissed the complaint, declaring that “the first motion is sufficient,” and the plaintiffs appeal, urging that under the provisions of section 1369 of the Greater New York charter (Laws of 1897, chap. 378), which makes the provisions of the Consolidation Act (Laws of 1882, chap. 410) relating to District Courts applicable to the Municipal Court (section 1383 of the latter act corresponding with section 3126 of the Code of Civil Procedure), the plaintiffs having served a verified complaint they were entitled to a judgment in the absence of a verified answer by the defendants.

We think the notice of appeal is sufficient to bring this case before this court for review.

Section 3126 of the Code of Civil Procedure must not be construed too literally. Apparently to prevent a judgment being taken against him, where a complaint in the Justice’s Court is verified, the ' defendant must file a verified answer either denying the allegations of the complaint or setting up new matters of defense. The complaint may be entirely true, and there may be no new matter to set up in avoidance of it, nevertheless the facts stated in the complaint may create no liability on the part of the defendant. This objection the defendant has an inherent right to raise, of which he cannot be deprived by any provisions of a practice act. The motion to dismiss the complaint should, therefore,-be treated as a demurrer. But we think the demurrer to the complaint was not well taken. Though the undertaking was given upon an appeal from a judgment recovered by the plaintiffs as executors, still it could have been enforced by the plaintiffs in a suit in their individual capacity (Thompson v. Whitmarsh, 100 N. Y. 35), and it was neither necessary to allege nor prove the probate of the will and the issue of letters testamentary, as the defendants were concluded on that question by the? recovery of the first judgment and- their execution of the undertaking on appeal from it. Neither is the objection well taken that the complaint failed to allege the issue of an execution on the judgment pf the appellate tribunal by the county clerk. The judgment, the amount of which is sought to be recovered from the defendants, Was not the judgment rendered by the justice, to which section 3017 of the Code applies, but the judgment of the court on appeal. . Further, if the objection had been good to the allegations of the complaint respecting this item of recovery, it certainly did not prevent the plaintiff from recovering the rent that accrued during the appeal. Beyond all this, by section 2939 of the Code (made applicable to the courts of this city by section 1347 of the Consolidation, Act), had the court deemed the demurrer well founded, it was required to permit the complaint, to be amended, and it could not have dismissed the complaint nor rendered -judgment for the defendants without giving the plaintiffs- such an. opportunity.

The question whether the plaintiffs could have recovered judgment on their verified complaint without proof before the justice of their cause of action, dues not arise in the case. The plaintiffs were not given any opportunity to prove their case. Their comiplaint was dismissed on the motion of the defendants, not for a failure to give proof before the justice, but because the complaint did! not state facts sufficient to constitute a cause of action. Further, we are of opinion that an undertaking given on appeal is a contract within section 3126 of the Code. (Montegriffo v. Musti, 1 Daly, 77.)

The judgment appealed from-must be reversed and a new trial granted,'with costs to the appellants. - ;

All concurred

Judgment reversed and new trial granted, costs to the; appellants to abide the event. 
      
      Sic.
     