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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 548 We are of opinion that the complaint states a good cause of action and that the demurrer was not, therefore, well taken. *Page 550
While the note mentioned in the complaint contains a promise to pay E.B. Litchfield, "executor of the estate of H. Maria Litchfield, deceased," the words quoted are mere descriptiopersonœ. There is nothing in the complaint showing that the loan was made by him as executor and in no other capacity; and upon the facts alleged in the complaint, if Litchfield had desired to commence suit directly upon the note against the maker thereof, he would have been obliged to commence it in his individual name, and in that capacity he could have recovered. (Peck v.Mallams, 10 N.Y. 509)
So, too, although in the title of this action, after the word Litchfield, the words "executors of the last will and testament of H. Maria Litchfield, deceased," appear yet the action is the individual action of Electus B. Litchfield. The whole body of the complaint shows an action in his favor to enforce an agreement made by him individually with the defendant for the payment of the note given to and held by him individually. In such a case 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 plaintiff. (Merritt v. Seaman, 6 N.Y. 168; Stilwell v.Carpenter, 62 id. 639; Beers v. Shannon, 73 id. 292;Thompson v. Whitmarsh, 100 id. 35.)
We agree with the General Term that this is not an action to enforce a trust, but simply to enforce the agreement of the defendant to pay the note held by the plaintiff which is set out in the complaint. It is quite clear that under the authority ofLawrence v. Fox (20 N.Y. 268); Barlow v. Myers (64 id. 41); Vrooman v. Turner (69 id. 280), and other like cases. Foote, if he had continued to hold the note, could, upon the facts alleged in the complaint, have compelled its payment by the defendant. His agreement to pay the note to Foote was founded upon an ample consideration passing to him from the plaintiff. At the same time the plaintiff was under a legal obligation or duty to Foote by virtue of his indorsement upon the note which he had transferred *Page 551 to him, and his interest and obligation consequent upon his indorsement bring the case precisely within the rule laid down inVrooman v. Turner (supra), in the following language: "A legal obligation or duty of the promisee to him (the third party) will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor."
It is true that the complaint does not very distinctly aver the indorsement by the plaintiff of the note, which was held by Foote at the date of the agreement. But the note was payable to plaintiff's order, and the complaint alleges that it was transferred to Foote, which, in the case of such a note, would imply its indorsement; it avers that payment of the note was demanded, and that it was protested for non-payment, and that notice of protest was duly served upon plaintiff. It is also alleged that the agreement was entered into for the purpose, among other things, of making certain provision for the payment of the note and the indebtedness of the Kings County Central Railroad Company evidenced thereby, and of indemnifying the plaintiff, as executor, from liability thereon. From all this language we think it can be inferred that the plaintiff was the indorser of the note while it was in the hands of Foote; and, therefore, the promise of the defendant became available to Foote, and the assignment and transfer of the note to the plaintiff enabled him as such assignee, standing in the shoes of Foote, to enforce the agreement.
But even if this were not so the conclusion would still be reached that the plaintiff could enforce payment of the note. The defendant promised to pay this note upon ample consideration furnished by the plaintiff. He thus became bound to some one to pay it. If he did not become bound to Foote, he certainly did to the plaintiff, and he having become possessed of the note can, not simply as assignee of Foote, but as a party to the agreement, enforce payment of the note. He holds not only all the rights, if any, Foote *Page 552 had under that agreement, but all the rights which he had thereunder as a party thereto, and there can be no doubt that he is in a position to enforce the promise the defendant made to him to pay the note.
Therefore, the plaintiff having become owner and holder of the note, having procured the consent of the Kings County Central Railroad Company to its payment by the defendant, and having tendered to him the sixteen bonds to which he was entitled under the agreement, and the enterprise mentioned in the agreement having been closed up and terminated, the defendant having ample funds for the payment of the note, we see no reason to doubt that the complaint sets forth a sufficient cause of action and that the demurrer should not have been sustained.
The judgment of the General Term, should, therefore, be reversed, and that of the Special Term overruling the demurrer affirmed; and the defendant should have leave to withdraw his demurrer and serve an answer within thirty days upon payment to the plaintiff of all the the costs since the service of the demurrer.
All concur.
Judgment accordingly.