
    Wood Gibson, Resp’t, v. Samuel G. Blakley, Individually and as Administrator, etc., Impleaded, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    1. Parties—Executor.
    An action may be maintained against a defendant to recover against him personally and as administrator, in case he is liable in both capacities.
    3. Same.
    A defect of parties defendant was held, in this case, not to be apparent on the face of the complaint.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    
      Abram Kling, for app’lt; David Keane, for resp’t.
   Per Curiam.

April 24, 1867, Wood Gibson, Sr., recovered a judgment against his son, Wood Gibson, Jr., for $23,300.11, which became a lien on the interest of the judgment debtor in No. 295 "West Eleventh street. November 2, 1869, the judgment debtor ■conveyed his interest in said premises to James Blakley, who in consideration thereof executed and delivered to the grantor (the plaintiff herein) a contract, of which the following is a copy:

. “Whereas, I, James Blakley, of the city of New York, have purchased from Wood Gibson, Jr., of said city, his interest in the property, in the city aforesaid, known by the number 295 West Eleventh street, as appears from his certain deed (in which Elizabeth J. Guión and Clement Guión join) to me, conveying said property, which deed bears even date herewith ; and whereas, the consideration of the said conveyance to me by the said Wood ■Gibson, Jr., is the sum of fourteen hundred dollars ($1,400,) which sum I have not yet paid to the said Gibson by reason of the existence against him of a judgment in favor of his late father: Now, therefore, I, the said James Blakley, do hereby covenant and agree that upon the cancelment of the said judgment, or upon the release from the lien thereof of the property aforesaid, I shall, upon demand, pay to the said Wood Gibson, Jr., the sum aforesaid of fourteen hundred ($1,400) dollars, with lawful interest ■from the date thereof. This covenant to apply to and bind the lawful representatives of myself and of the said Gibson.
“ [Signed] James Blakley.'
“Dated November 2, 1869.
“In presence of [Sgd] Chas. Coudert, Jr.”

July 19, 1869, Wood Gibson, Sr., died leaving a last will and testament, which was duly admitted to probate, September 8, 1869, and letters testamentary thereon were duly issued to said James Blakley, who was nominated as an executor therein. The testator bequeathed one-fourth of his estate to said James Blakley in trust for the following purposes: (1) To pay the aforesaid judgment; (2) the remainder of the fourth to be invested, ■and the income therefrom paid to Wood Gibson, Jr., during his life. The executor received from said estate moneys properly applicable to the payment of the judgment, to an amount more than sufficient to pay the same, but the judgment has never-been canceled of record. June 25, 1888, James Blakley died, leaving the defendant, his son, his only heir and next of kin, who was duly appointed the administrator of his said estate. These facts are set forth in the complaint, and it is also alleged that no part of the $1,400 promised to Ire paid by said contract has been paid, and it is also alleged that the defendant has received assets from his father’s estate in an amount more than sufficient to pay said sum. The complaint closes with a prayer that the judgment be canceled of record, and that the plaintiff have judgment .against the defendant as administrator for $1,400, with interest thereon from November 2, 1869. It is more than 27 years since this judgment was recovered, and more than a quarter of a ■century since the defendant's intestate received from the plaintiff a ■conveyance of the premises. Presumptively the judgment has long ceased to be a lien on the real estate, or even an enforceable ■claim against the judgment debtor personally, and a good cause of action is set out as against the defendant in his representative capacity. It is insisted that facts sufficient to constitute a cause of action against the defendant individually are not set forth in the complaint. In considering this question, it must be borne in mind that this action is not against devisees or legatees, nor is it against one of several next of kin, or of one of several heirs, and many of the facts which are necessary to be alleged in such cases are not necessary to be in this action. In so far as this is a personal action, it is against a sole heir and next of kin, who has received the whole- estate of his ancestor, subject to the liability to pay the debts of the ancestor in so far as the defendant has received sufficient assets, and sufficient facts are alleged to constitute a cause of action against the defendant individually. An action may be maintained against a defendant to recover against him personally and as an administrator, in case .he is liable in both -capacities. Code Civ. Proc. section 1815. It does not appear on the face of the complaint that there is a defect of parties defendant. It is not alleged that an administrator with the will annexed or a testamentary trustee for the estate of Wood Gibson, Sr., has been appointed, and, for aught it appears, the estate may have been settled and the trust terminated.

The judgment should be affirmed, with costs.  