
    Sam Obnet, Plaintiff, v. Mary C. Ridder and William J. Amend, Individually and as Executrix and Executor of the Estate of Theresa M. Amend, Defendants.
    (Supreme Court, New York Special Term,
    May, 1917.)
    Motions and orders—'pleading — costs — when motion to amend or to discontinue granted.
    A motion made after a demurrer has been noticed for trial for leave to change the title of the action by omitting the words “individually and as executors, etc.,” is really one to amend the complaint or to discontinue as against the executor and will be granted on payment of taxable costs.
    Motion by plaintiff to change the title by omitting therefrom the words “ individually and as executrix and executor of the Estate of Theresa M. Amend.”
    Irving Rosenberg, for motion.
    John E. Donnelly, opposed.
   Greenbaum, J.

The defendants being sued individually and as executors were in effect sued as separate parties. The defendant served was therefore justified in answering as an individual and demurring as executor. Leonard v. Pierce, 182 N. Y. 431, 432; Keating v. Stevenson, 21 App. Div. 604. After the issue of law was noticed for trial this motion is made by plaintiff to permit him to change the title by omitting the words individually and as executors, etc.” The motion is really one to amend the complaint or to discontinue as against the executors. The plaintiff is entitled to the relief desired, but only upon payment of taxable costs. Kerrigan v. Peters, 108 App. Div. 292, 294; Ward v. Terry & Tench Const. Co., 118 id. 80, 85; Audley v. Townsend, 131 id. 79, 80. Motion granted upon the terms indicated.

Motion granted.  