
    ELLEN MURRAY and BERNARD McCAFFERTY, as sole surviving Executrix and Executor, etc., Respondents, v. SIMEON E. CHURCH, Impleaded with MARGARET LOUISE WOOD and others, Appellants.
    
      Practice—demwrer—executor—suit by.
    
    Where the plaintiffs were described in. the title of the cause as executrix and executor, and, in the body of the complaint, a good cause of action is completely alleged and set fo rth, but it appears to be in the plaintiffs’ own right, and not in their representative capacity, held, that a demurrer on the grounds that the plaintiffs had no capacity to sue, it not appearing from the complaint that they were executrix and executor, and that the complaint did not state facts sufficient to constitute a cause of action, was frivolous.
    Appeal from a judgment, entered in favor of the plaintiff, for the foreclosure and sale of the real estate described in the complaint, and from an order overruling demurrer as frivolous, and directing judgment for the plaintiffs.
    The defendant, Church, demurred to the complaint on the grounds:
    
      First. That the plaintiffs have not legal capacity to sue. It does not appear from said complaint that the plaintiffs have any authority to represent the estate of Peter Murray, deceased, as executrix or executor, or otherwise, or that there is any such estate.
    
      Second. That complaint does not set forth facts sufficient to constitute a cause of action.
    On the motion of thé plaintiffs’ counsel, an order was made at Special Term overruling defendant Church’s demurrer as frivolous, and directing judgment for the plaintiff, and referring the case to a referee to compute the amount due. Upon the coming in of his report, without further notice to the defendant, judgment of foreclosure was entered, and an allowance of two and a half per cent made to the plaintiffs. The facts are stated in the opinion.
    
      S. F. Church, for the appellant.
    
      Boardman c& Boardman, for the respondents.
   Daniels, J.:

The plaintiffs in the title of this action, described themselves as executrix and executor of the last will and testament of Peter Murray, deceased. And they then proceed, for the purpose of alleging a cause of action, to set out in the complaint, the execution and delivery by the defendants, Margaret L. and Henry Wood, to the plaintiffs, in their individual capacity, of a bond and mortgage to secure the sum of $5,500, with interest. They also show that the moneys secured and agreed to be paid, have become due, and that the same are wholly unpaid.

That the other defendants have some interest in, or lien upon the mortgaged premises, or some part of them,, which accrued subsequent to the lien of the mortgage. The mortgage is alleged to have been recorded, and judgment of foreclosure and sale is demanded. A good cause of action is completely alleged and set-forth in the complaint, but it appears to be in the plaintiffs’ own right, and not in their representative capacity.

If they had not described themselves as executrix and executor, no possible objection could be made to the cause of action alleged. It would then be as complete and perfect as any rules of pleading could require it to be.

The circumstance that they did so describe themselves, does not, in any manner, change the effect of the facts alleged.

That is merely a description of their persons; and, in view of the facts stated, it does not warrant the conclusion that the suit must be maintained by them in that capacity.

They were at liberty, notwithstanding that description, to rely upon a cause of action existing in their favor, in their own right; and, in doing so, their complaint, being sufficient in all other respects, was not demurrable on account of the fact that, in the title of the action, they describe themselves as having a representative character.

This point was very well settled by the case of Merritt v. Seaman, and the authorities referred to in the opinion of Judge Gteidley.

As the bond and mortgage were executed and delivered to the plaintiffs, and secured the moneys, mentioned, to" them, they did have the legal capacity to maintain the present action for the foreclosure of the mortgage, although they were executrix and executor, precisely as the title of the action stated them to be, and the facts set forth in the complaint, presented a' perfect cause of action in their favor. The demurrer presenting only these objections, was, therefore, clearly frivolous, and was properly overruled as such.

The allowance made, of two and a half per cent, was within the discretion conferred upon the court in this class of cases.

And there is nothing in the case, showing that it was improperly exercised on the present occasion.

But, if there were anything of that nature in the case, it would not aid the defendant appealing, because no exception was taken presenting it for consideration.

As no other objections are presented by the appeal, the judgment should be affirmed with costs.

Davis, P. J., concurred.

Judgment affirmed, with costs. 
      
       2 Seld., 168.
     
      
       Code, § 309.
     