
    Lea Gross, as Executrix, etc., of Isaac Gross, Deceased, Respondent, v. Kalman Gross et al., Appellants.
    (City Court of New York, General Term,
    November, 1898.)
    1. Executors and administrators—Complaint for goods sold deemed tha of an executrix as an individual.
    Where a complaint by an executrix, for goods sold after the death of her intestate, shows a cause of action in her individual capacity only, the descriptive words “ as executrix ”, contained in the etitle of the action, may be rejected and the action be deemed her individual action.
    2. Same — Counterclaims.
    Counterclaims, arising out of causes of action which accrued before the death of a testator, cannot be offset against goods sold after his death by his executrix.
    Appeal from an interlocutory judgment.
    Wahle & Stone (Charles G. F. Wahle, of counsel), for appellants.
    M. S. & I. S. Isaacs (Julius J. Frank and Julien M. Isaacs, of counsel), for respondent.
   Conlan, J.

This is an action for goods sold and delivered, brought against Kalman Gross and William J. Rosenbloom, doing business in the city of ¡New York under the firm name and style of K. Gross & Rosenbloom.

The complaint alleges that on the 24th day of April, 1896, one Isaac Gross died, leaving a will, wherein the plaintiff and the defendant Lazarus Levy were nominated as executors, and that the .will was probated and letters testamentary issued to the plaintiff and to the defendant Lazarus Levy. That on or about the 13th day of August, 1896, the plaintiff and the defendant Lazarus Levy, as executors, sold and delivered to the defendants, goods, wares and merchandise of the value and of the agreed price of $421.70. Lazarus Levy is made a defendant upon the ground that he refused to join as a coplaintiff in the action.

The answer puts in issue the sale of the goods, and as a separate defense pleads: First, that the plaintiff is not the real party in interest; second, payment to the plaintiff and her testator, and, third, sets up three several counterclaims as of a date prior to the testator’s death, and the defendants ask judgment in their favor for the amount due thereon.

The case came before the lower court on demurrer to the defense that the plaintiff was not the real party in interest and to the sufficiency of the allegation of the alleged counterclaims.

The action was, we think, properly brought by the plaintiff, and it matters not whether the accompanying words in the title, as executrix,” etc., were included or dispensed with if it appeared from the pleading itself that the cause of the action was an individual liability existing in favor of the plaintiff, for, when the complaint shows a cause of action in favor of the plaintiff, not in his representative but in his individual character, the descriptive words may be rejected, leaving the action to stand as one in the individual capacity of the defendant. Earl, J., in Litchfield v. Flint, 104 N. Y. 550. The only difference would be that in the event of suing as executor when he might have brought suit in his individual capacity, he would be personally chargeable with costs. Buckland v. Gallup, 105 N. Y. 453.

But- with regard to the defenses interposed, the case is somewhat different. The counterclaims interposed were of causes of action which had accrued prior to the testator’s death, and were not properly the subject of counterclaim in an action brought to recover upon a liability created after the happening of that event. And the reason for this is apparent when we consider the relation which a creditor bears to the assets of an estate.

The executor is charged with the duty of collecting the assets of the estate and of converting the same into money for the purpose of paying creditors. If a creditor who has incurred an obligation to the estate after the death of the testator, might be permitted to offset 'the same with an obligation in his favor owing prior to the death of the testator, the result of such an arrangement might be to impoverish the estáte for his own benefit and leave other creditors in his class without due proportion of the assets. It is quite certain that such a disposition of the assets was never contemplated by» any law upon the statute books.

It was said in Thompson v. Whitmarsh, 100 N. Y. 35, if a defendant can use his demand as a counterclaim, he alone of all the creditors can secure a preference out of the assets. FTo such construction of the Code is permissible. Upon what theory, then, the defendant would insist that he had the right to offset his alleged counterclaim against the demand accruing subsequent to the death of the testator, we are at a loss to discover, and we are of the opinion that the questions presented on this appeal were very properly disposed of by the decision upon the demurrer, as was well stated in the opinion of the learned justice in the court below:

“ The plaintiff’s claim in this action and the defendants’ counterclaim are not mutual indebtednesses under the rule, and can, therefore, not be counterclaimed.”

The interlocutory judgment appealed from must be affirmed, with costs.

Fitzsimons, Oh. J., and O’Dwyer, J., concur.

Judgment affirmed, with costs.  