(dissenting in part). I concur with the majority (1) as to the dismissal of the purported appeal from that part of the judgment which dismisses the complaint as to the defendant Parish Produce, Inc., and (2) as to the dismissal of the appeal from the order not in the record. I dissent, however, from the conclusion that the appellant, Marietta Muller, is liable to the plaintiff in the former’s representative capacity as executrix and trustee. I vote for the disposition of the appeal as indicated infra. I agree that the judgment appealed from is not vulnerable to attack on grounds related to alleged negligence, contributory negligence, or damage. In so far, however, as it directs recovery by plaintiff against the defendants Marietta Muller (appellant) and Charles H. Muller, as executors and trustees of the estate of Julius C. Muller, deceased, it is contrary to the law of this State. Such representatives are liable only as individuals for their tortious conduct in the discharge of their trust, resulting in damage to the person or property of another. (Matter of Van Slooten v. Dodge, 145 N. Y. 327; Keating v. Stevenson, 21 App. Div. 604; Trani v. Gerard, 181 id. 387; Matter of Lathers, 137 Misc. 226; Moniot v. Jackson, 40 id. 197; Gillick v. Jackson, Id. 627; Donohue v. Kendall, 50 N. Y. Super. Ct. [18 J. & S.] 386; affd., 98 N. Y. 635; vide Restatement of the Law of Torts, § 376.) The unquestioned law is to that effect. (Cases supra.) It is true, however, that in a proper case a representative who is individually held liable and cast in damages may be reimbursed from the estate funds for the amount paid by him to discharge such declared individual liability. (.Matter of Lathers, supra, and cases cited.)
If there is to be a fundamental change in the law, which the prevailing opinion indicates, so as to countenance direct liability of an estate for the tort of its representative, that change, in my opinion, should be made only by our highest court. A paucity of recent high authority on this subject reflects the general acceptance of the law (cases supra) of individual liability only. In this case the verdict in form as ultimately rendered by the jury was in favor of the plaintiff and against the “ Muller Estate ” only. Upon it judgment was entered against “ Marietta Muller and Charles H. Muller, Executors and Trustees of said estate, with Charles H. *309Muller not having been served.” Marietta Muller, individually and as executrix and trustee, was served with summons. Charles H. Muller in the same capacities was not served. Clearly, implicit in the verdict as rendered are findings (1) that the defendant was negligent, and (2) that plaintiff was free from contributory negligence. Manifestly the only defendant liable and against whom judgment should have been entered on the verdict was Marietta Muller individually, for as representative she was not hable. As indicated, she is the sole appellant, and Charles H. Muller was never served. I am of opinion that the circumstance that the verdict, with its implications as stated, was in form against the estate, is wholly immaterial legally; for in legal effect it declares the habihty of Marietta Muller individually only. The appellant upon the trial did not waive the point that she was not hable in her representative capacity. On the other hand, by adequate motions at the close of plaintiff’s proofs and of the entire proofs, she duly, consistently and sufficiently raised it. Therefore, there was no waiver even if we assume that an attorney for a representative on the trial has authority to waive in a manner that will place direct habihty upon the estate when none exists at law.
The judgment, in so far as it affects said estate and Marietta Muller, as executrix and trustee, should be reversed on the law, with costs to appellant Marietta Muller, as executrix and trustee, and the complaint dismissed, with costs to said appellant, as executrix and trustee.
Hagarty, J., concurs.
Judgment, in so far as it affects the estate of Juhus C. Muller, deceased, and Marietta Muller, as executrix and trustee, affirmed, with costs to plaintiff.
Appeal from that part of the judgment which dismisses the complaint as to defendant Parish Produce, Inc., dismissed, without costs.
Appeal from order denying motion of defendant Marietta Muller, as executrix and trustee, to set aside the verdict dismissed.