
    John T. Willets and Others, Surviving Executors of the Last Will and Testament of Samuel Willets, Deceased, Respondents, v. Franklin Haines, Appellant, Impleaded with Gerard H. Underhill.
    
      Title of an action—omissiori of the word “ as” after the name and before the statement of the representative capacity of the plaintiff—enforcement of a judgment recovered by executors who have been directed to turn over the assets to themselves as trustees —when they may sue as executors.
    Where the averments in a complaint are such as to affix to the plaintiff a representative character and standing in the litigation, and to show that the cause of action, if any, devolved upon him solely in that character, the omission, in the title of the action in the summons and complaint, of the word “as ” between the name of the plaintiff and the words descriptive of his representative capacity, does not prevent him from claiming that the action is brought and a recovery is to be had by him in the latter capacity.
    When executors, in obedience to a surrogate’s decree rendered upon their accounting, turn over to themselves as trustees under their testator’s will the balance of the estate found to be in their hands, they are discharged from liability as executors with respect to the property turned over, but continue as executors with respect to assets not turned over.
    Executors who, as such, had recovered a judgment upon certain promissory notes, set forth in the account filed by them as executors the judgment and the notes as uncollected debts. The decree rendered on the accounting directed the executors to turn over to themselves as trustees the assets which they had at the time of the accounting, but did not discharge them as executors nor did the executors assign the judgment to themselves as trustees.
    Held, that the executors might maintain an action upon the judgment in their capacity as executors and were not obliged to bring it in their capacity as trustees.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, Franklin Haines, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 24th day of April, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      William W. Niles, for the appellant.
    
      Wilson M. Powell, Jr., for the respondents.
   McLaughlin, J.:

This appeal is from a judgment entered on a verdict directed by the court. The action was brought to recover the amount of a judgment. At the conclusion of the trial — there being no dispute as to.the facts involved — the court directed the jury to render a verdict for the amount of the judgment, with interest thereon from the date of its. entry, December 12, 1883. A verdict was accordingly rendered, and'from the judgment entered thereon defendant has appealed and asks for a reversal, substantially upon two grounds.

First, that the plaintiffs have no interest in the judgment sued on, and, therefore, the motion made to dismiss at the close of plaintiffs’ case ought to have been granted. What is claimed in this respect is that the judgment recovered belonged to the plaintiffs as executors or trustees under the will of Samuel Willets, deceased, and that this action is brought by them, not as executors or trustees, but personally. It is true that in the title of the action in the summons and complaint the word “ as ” between the names of the plaintiffs and the words descriptive of their representative capacity is omitted, but it does not necessarily follow because of such omission that the action is brought in . a personal and not a representative capacity. On the contrary, it clearly appears from the allegations of the complaint that the action is brought by them as executors, and not otherwise. They described themselves as such, and allege that they are the surviving executors under said will and the owners and holders of said judgment.” This is sufficient to bring the case under the general rule, that where the averments in a complaint are such as to affix to the plaintiff a representative character and standing in the litigation, and to show that the cause of action, if any, devolved upon him solely in that character, the omission in the title to the action of the word as ” between the name of the plaintiff and the words descriptive of his representative capacity does not prevent him from claiming that the action is brought and recovery is to be had by him in the latter capacity. (Beers v. Shannon, 73 N. Y. 292.)

Second. It is claimed that the plaintiffs as executors under the will of Samuel Willets have ceased to exist and that they are now trustees under such will. The judgment sued on was. recovered by them as executors and they thereafter accounted as such. The original judgment was based upon certain promissory notes. These notes, as well as the judgment, were set out in the account filed by the plaintiffs as executors as debts uncollected. The assets which the executors had at the time the accounting was had were directed by decree, to be turned over to them as trustees, but there was no decree discharging them as executors, nor was there any assignment of the judgment made by them as executors to themselves as trustees.

I do not think the settlement referred to discharged them as executors. Section 2742 of the Code of Civil Procedure provides what shall be the effect of the judicial settlement of an executor’s account. His final discharge is not in terms provided for, nor was it, as already said, here decreed. It is undoubtedly true that when executors under a surrogate’s decree Upon their accounting turn over to themselves as trustees the balance of the estate found to be in their hands, it is in effect a discharge with respect to the property so turned over, but it does not follow from this that their functions as executors are thereby absolutely terminated. (Mahoney v. Bernhard, 45 App. Div. 499 ; affd., 169 N. Y. 589.) On the contrary, they continue as executors with respect to the assets not turned over. The subject is referred to by Mr. Redfield in his work on Law and Practice of Surrogates’ Courts (4th ed. p. 788), where he says: “ Other assets may be realized and new liabilities incurred,” and as to these the executorial duty continues. (See, also, Matter of Doheny, 70 App. Div. 370.)

The judgment appealed from is right and should be affirmed, with costs. '

O’Brien, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment affirmed, with costs.  