
    Maurice J. Burstein, Respondent, v. Barnett Levy, as Executor of the Last Will and Testament of Louis Levy, Deceased, Impleaded with Barnett Levy, Individually, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    (Pleading — Demurrer to answer — When demurrer to answer lies — Six-years limitation to action on sealed instrument.
    An action upon a sealed instrument may be brought within twenty years; and an answer which pleads the Statute of Limitations based on shorter periods is demurrable.
    If the plaintiff does not prove a sealed instrument he may have leave to amend and then it will be time enough to set up a defense based on shorter periods of limitation than twenty years.
    Where a defendant is sued both individually and as executor the complaint is good as against a demurrer that the court has no jurisdiction of an action against an executor.
    Appeal from an interlocutory judgment of the City Court of the city of Hew York, sustaining a demurrer to defenses set up in the answer.
    
      Rosenberg & Greenberg (K. Henry Rosenberg of counsel),, for appellant.
    J. Charles Weschler and S. S. Myers, for respondent.
   Giegerich, J.

The complaint alleges a breach of covenant, of an instrument under, seal. The answer, among other things, sets.up the Statute of Limitations, pleaded in threéways. First, that the cause of action set forth in the complaint did not accrue within three years before the commencement of the action; and second, that it did not so-accrue within six years; and third, that it did not so accrue-within ten years.

The action being on an instrument under seal, twenty year is allowed as the limitation. Code Civ. Pro. § 381; Dwinelle v. Edey, 102 N. Y. 423; Hulbert v. Clark, 128 id. 295; Murdock v. Waterman, 145 id. 55.

The suggestion that the plaintiff will fall short in his proof upon the trial, and that the .conveyance relied upon will be found not to have a seal, and that he will then fall back upon an implied contract or a breach of warranty, need not be seriously considered. The plaintiff has pleaded a sealed instrument. ' If he does not prove one, he will have to amend, and then it will be time enough for the defendant to set up the defense based on shorter periods of limitation than twenty years. Such leave to amend the answer would doubtless be granted as . a condition to granting leave to amend the complaint.

Hone of the grounds urged against the sufficiency of the complaint are well taken. The inappropriate use of the word plaintiff, in one place, is so obviously a clerical error, 'defendant being intended, that it needs no discussion.

The objection that the City Cburt has no jurisdiction in an action against an executor in his representative capacity is equally ineffectual. The defendant is sued both individually and as executor, and the complaint is good against demurrer (Darling v. Powell, 20 Misc. Rep. 240), even though the court have no jurisdiction against the defendant purely in his representative capacity, which is a point that need not be considered now. As to pleading the existence of the lien of the unpaid water tax, I do not think it was necessary to aver anything more than was averred.

The interlocutory judgment should be affirmed, with costs.

Scott and Gbeenbaum, JJ., concur.

Interlocutory judgment affirmed, with costs.  