
    Benjamin Weeks, Appellant, v. James O’Brien, as Executor, etc., of Ellen O’Brien, Deceased, Respondent.
    Counterclaim—• an executor cannot, as against a debt owing by Ms testatrix, set off claims assigned to the executor — objection by demurrer that such claims donot constitute a cause of action.
    
    Ah executor against whom, as such, a contractor has brought an action, to recover damages for the breach of a1 building contract made by the testatrix, cannot interpose, as counterclaims, judgments recovered against the contractor by third parties which have been assigned to the executor,- as such. judgments are held by him in his individual, and not in his representative, capacity.
    The objection to such counterclaims is properly taken by a demurrer, interposed thereto on the ground that they do not state fadts sufficient to establish a cause of action. ' .
    
      Appeal by the plaintiff, Benjamin Weeks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the .clerk of the county of New York on the 6tli day of May, 1897, upon the decision of the court rendered after a trial at the New York Special Term overruling the plaintiff’s demurrer to certain counterclaims contained in the answer and awarding the defendant affirmative judgment thereon; also, from an-order entered in said clerk’s office on the 18th day of March, 1897, upon which said judgment was entered, and also from an order entered in said clerk’s office on the 21st day. of May, 1897, denying the plaintiff’s motion to set aside the said judgment.
    
      Brainard Tolles, for the appellant.
    
      Abram Kling, for the respondent.
   Barrett, J. :

The action is brought against the defendant in his representative capacity as executor of Ellen O’Brien, deceased, to recover damages for breach of a building contract by his testatrix. The answer sets up a number of counterclaims founded upon judgments recovered by third parties against the plaintiff, which it.is alleged were before the commencement of this action assigned to the defendant as executor of Ellen O’Brien, deceased. These counterclaims were demurred to upon several grounds, one being that they do not state facts sufficient to constitute a cause of action.

We think this' demurrer was well taken. A demurrer to a complaint or counterclaim upon the ground that the facts stated are not sufficient to constitute a cause of action is well taken when such facts do not disclose an enforcible claim against the party demurring in favor of the plaintiff or counterclaiming defendant. Here the counterclaims as alleged show no enforcible claim against the plaintiff in favor of the estate of Ellen O’Brien, deceased.

The rule is well settled that, where an executor takes a chose in action as a new security for a debt or obligation due to his testator, he takes it in his representative capacity. Before the Code the executor could sue upon such chose in action either in his individual or representative name. Now, however, under sections 449 and 1814 of the Code of Civil Procedure, the action must be brought in his representative character. This is expressly required by section 1814; and section 449 provides that an action must be brought in the name of the real party in interest. As the chose in action under such circumstances belongs to the estate, the executor as such is the real party in interest. This is well settled. (Thompson v. Whitmarsh, 100 N. Y. 35.) The converse is equally well settled. Thus, where the chose in action does not come to the executor through his representation of the deceased, where, in fact, such chose in action is acquired by-him under a contract which never existed in favor of the decedent, he takes it individually and not as executor. This was held in the case above cited, where the rule was extended even to a debt received by -the executor upon the sale of property of the estate. Finch, J., there said : “ Where an executor or administrator sells on credit the property of the estate and sues to recover the debt, he as an individual is the real party in interest, for the contract is made with him, and the promise to pay runs to him.” (See, also, Dudley v. Griswold, 2 Bradf. 24, and McClenahan v. Cotten, 83 N. C. 332.) It follows that an individual claim of the defendant is here attempted to be counterclaimed against a cause of action against his estate. This may not be done. (Code, § 505.) The defendant, in his representative capacity, has absolutely no'interest in the counterclaims alleged. In such capacity he is as much a stranger to them as though they had been held by some third party, As executor, he has no cause of action thereon.

It may be that this point might have been raised by a demurrer upon the ground that the counterclaims were not of the character-specified in section 501 of the Code, the particular nature of the' variance being set forth. We 'think, however, that the method adopted was also a proper one.

The judgment overruling the demurrer should be reversed, and the demurrer sustained, with costs of the appeal and in the court below, and leave to the defendant to amend upon payment of such costs. •

Van Brunt, P. J., Rumsey, Patterson and O'Brien, JJ., concurred.

Judgment and orders reversed and demurrer sustained, with- costs of appeal and in the court below, and with.leave to defendant to amend upon payment of süch costs, ■  