
    Jonas P. Varnum, Adm’r with the Will Annexed, App’lt, v. James W. Taylor, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Executors and administrators — May sue for goods sold by them IN BUSINESS AUTHORIZED BY THE WILL.
    Where executors continue the business of their testator under an authorization contained in the will, an indebtedness for goods sold in such business is due to them in their representative capacity, and an action may he maintained therefor by them or their successor.
    2. Pleading—Pabties.
    An objection that the plaintiff is not the real party in interest must be taken by demurrer or answer; a failure to do so precludes the defendant from raising the question at the trial.
    Appeal from a judgment of the Monroe county court, entered upon a nonsuit directed by the special county judge May 22,1890, ■dismissing the plaintiff’s complaint.
    
      Howard L. Osgood, for app’lt; W. Henry Davis, for resp’t.
   Macomber, J.

The plaintiff, who is the administrator with the will annexed of Charles J. Hayden, deceased, brings this action to recover a balance due the estate which he represents, arising out of dealings of the executors appointed by the will. One •of the executors, Charles A. Hayden, was empowered by his associates to manage the business which had previously been conducted by the testator, and which, by the terms of the will, the executors were authorized to continue, .in their discretion, after the decease of the testator. The indebtedness of the defendant was incurred between the 20th and 30th of August, 1888, being for merchandize of the estate, manufactured and sold by the acting executor, amounting in all to the sum of $347.50. Subsequently, and on the 14th day of September of that year, the executors were permitted to resign their trust, and this plaintiff was appointed by the surrogate of Monroe county in their place as administrator with the will annexed. On the 27th day of November, 1889, Charles A. Hayden, under whose management the estate had been previously administered, assigned to the plaintiff, as administrator with the will annexed, the claim in action, upon which it was shown at the trial there was unpaid, .at the time the action was begun, the sum of $232.50, there having been previously paid by the defendant to Charles A. Hayden the sums of $100 and $Í5 respectively.

Upon the trial the special county judge, at the close of the evidence, nonsuited the plaintiff upon the ground, as stated in the case, that the plaintiff, as the administrator with the will -annexed of Charles J. Hayden, was not the real party in interest'

This direction of the court was erroneous. Under the allegations and the proofs, the defendant was indebted to the estate represented by the executors of the decedent, which indebtedness was incurred under lawful power contained in the will by which the business theretofore carried on by the testator might ■be continued by the executors in their representative capacity.

By reason of such authorization in the will, followed as it was by the approval of the surrogate’s court, the indebtedness which the defendant incurred was owing to the executors in their representative capacity, and an action might be maintained therefor by them or their successor.

But there is another reason why this judgment should be reversed, and that is, that the objection to the maintenance of this ¡action by the plaintiff was not taken by the defendant either by demurrer or by answer. All of the facts disclosing any objection which might be taken to the capacity of the plaintiff to sue appeared in the complaint, and if it was intended to raise the objection that the plaintiff, as the administrator with the will annexed, could not maintain the action, it was incumbent upon the defendant to demur to the complaint; or, if it was deemed doubtful whether the facts were all disclosed in the complaint, to allege in his answer that the plaintiff had not legal capacity to sue.

The failure either to demur or to answer precluded the defendant from raising the question at the trial. Section 488 of the Code of Civil Procedure provides that the defendant may demur where it appears upon the face of the complaint that the plaintiff has not legal capacity to sue. By § 499 of that Code, if such objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it. This is distinctly so decided in the case of Nanz v. Oakley, 122 N. Y., 631; 33 N. Y. State Rep., 330; 19 Civ. Pro., 246. This principle is in accordance, also, with the case of Wright v. Wright, 54 N. Y., 437, where it is held that the objection to the ability of the plaintiff to bring suit in the form adopted is in the nature of a dilatory plea, and to be made available it must be strictly pleaded.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Dwight, P. J., and Corlett, J., concur.  