
    Solomon L. Reiss, as Surviving Partner of the Firm of Reiss & Bernhard, and Doing Business under Said Firm Name, Appellant, v. William Pfeiffer, as Executor, etc., of Minnie Pfeiffer, Deceased, and the United States Fidelity and Guaranty Company, Respondents.
    Second Department,
    March 15, 1907.
    Evidence — when representative capacity of defendant admitted by pleading — practice — when adjournment should he granted to allow production pf documentary evidence;
    The plaintiff had brought a prior action in which personal property in tlie pos -' session of defendant Pfeiffer was attached. The defendant’s mother claimed to be the owner and secured- possession of the property by. filing- a bond' under ■ section 85 of- the Municipal Court-Act of the city of New York. Thereafter .she died and the defendant Pfeiffer was appointed her executor. In an action against him as . executor and -tlie surety company on the bond,, the plaintiff alleged the death of the mother and the granting of letters testamentary'to the defendant- Pfeiffer, which allegation was not d'eniedfby him.
    
      ■Held, that it was error to dismiss the complaint as against the executor on- the theory that his representative capacity was not proved, for as. to him the fact waS admitted by the record;
    That as to the defendant surety company it was an abuse of discretion to refuse a short adjournment to enable the -plaintiff'to make propeirprOof of the probate of the will and the issuance of letters testamentary as an objection-to oral evidence thereof took the plaintiff by surprise.
    Appeal by tlie plaintiff, Solomon L. Réiss^ as- surviving partner, etc., from a judgment of -tile Municipal' Court of tlie’' city - of-[New York,. borough' of Brooklyn-, in favor of the defendants, -rendered on the 9 th day of .April-, 1906.
    
      Isidor Bwxbaum, for the appellant.
    
      James F. Fineman, for the respondents.
   Rich, J.:

The-plaintiff appeals from a judginent dismissing his complaint upon the merits. In November, 1905, the plaintiff commenced ah action in the Municipal Corirt against William Pfeiffer for the recovery of a money judgment in which' a .warrant", of attachment issued, and a-city marshal attached* certain property in the-possession of the defendant in that action.' Before its removal one Minnie Pfeiffer, the mother of the defendant, claimed to be its owner, and ■under the provisions of section 85 of the Municipal Court Act (Laws of 1902, chap. 580) executed and filed her bond to the plaintiff with the defendant the United States Fidelity and Guaranty Company, surety, conditioned “that in an action upon the bond, to be commenced within three months thereafter, the claimant will establish that she was the general owner of the property claimed at the time of the seizure, or if she fails so to do that she will pay to the plaintiff the value thereof with interest,” whereupon the marshal surrendered possession of the attached chattels to her.

Minnie Pfeiffer died, and on February 6, 1906, plaintiff commenced this action to recover upon the bond. After proving the various process and proceedings in the action in which the attachment issued and the execution of the bond by the defendants the plaintiff rested and the defendant company moved to dismiss the complaint upon the ground that there was no evidence in the case of the death of Minnie Pfeiffer or the appointment of William Pfeiffer as her executor. The plaintiff was then permitted to reopen his case and call the defendant Pfeiffer by whom he proved the death of said Minnie, his mother, but was not permitted to prove by the witness that she left a will which was probated, or that letters testamentary were issued thereon, objection being made that the will, decree of probate and letters were the best evidence of those facts. Plaintiff’s counsel thereupon asked for an adjournment to enable him to procure competent evidence of these facts. This was denied and the complaint as against the surety company dismissed.

The defendant Pfeiffer thereupon introduced evidence and the case was tried as to him upon the merits. The court subsequently rendered judgment in favor of the defendants dismissing the complaint upon the merits, and in his memorandum opinion says: “ I am convinced that the deceased Minnie Pfeiffer was not the owner of the property referred to in the complaint, but that William Pfeiffer was the owner thereof. However, I feel compelled to dismiss the complaint, because of the failure on the part of the plaintiff to make a case at law.” The learned court must have overlooked the fact that the plaintiff alleged in his complaint “ That said Minnie Pfeiffer departed this life at the Borough of Brooklyn, Hew York City, on the -7th day of January, 1906, leaving a last will and testament in which the defendant William Pfeiffer wás named as .the executor thereof, and that said last will and testament was duly •admitted to probate in the Kings County Surrogate’s ■ Court, and that letters testamentary on the estate of said' Minnie Pfeiffer, deceased, were duly granted .and issued to. said William Pfeiffer, Who is made a defendant herein as such executor and whose letters have not been revoked.” This allegation was not denied or put in issue by the answer of the defendant Pfeiffer. As to him those facts were admitted upon .the record. The trial court having reached the conclusion .that William Pfeiffer was the owner of the chattels, plaintiff was entitled to judgment against the defendant Pfeiffer as executor, and as to him the judgment must be reversed. It is apparent from the record that the plaintiff was surprised by the objection of the defendant surety company to the introduction' of oral evidence of the existence of the will, its admission to probate and the issuance of letters testamentary. His application for a short adjournment to permit his production of the records was not an unreasonable request, and ought, we think, in the exercise of a wise discretion, to have been granted upon such terms as to the trial court seemed proper. .■

The judgment must be reversed as to both defendants and a new trial ordered, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Oourt reversed and new trial ordered, costs to abide the event.  