The appellant claims the plaintiff cannot maintain this action, because he does not sue in his representative capacity. The point is based on the fact that the word “ as ” is not inserted in the title of the action before the word “ executor.”
In the cases cited to sustain this proposition (Merritt v. Seaman, 6 N. Y., 168; Sheldon v. Hoy, 11 How., 11; Worden v. Worthington, 2 Barb., 368), the complaints were considerably different from the present one. In the 6th New York, a cause of action on a note was set out without reference to plaintiff’s representative character, the promises were all laid to the plaintiff individually and no allegation of his appointment. In the case in 11 Howard, the action was *164in trover, and there was no allegation of appointment or that 'the plaintiff sued in his representative capacity. In the case in Barbour, the action was on the common counts for goods, etc., and the promises were all alleged as being to the plaintiffs, and there was nothing showing a debt or promise to the intestate. In the present case the action is based and alleged on promises to the testator, the appointment of plaintiff is in issue, the recovery is assets, the structure of the complaint shows the suit is • in plaintiff’s representative capacity, the finding of the court is that the plaintiff as executor had competent authority to bring the action and that he is entitled to recover. In 1 Chitty on Pleading, 315 [ed. of 1837], it is said the representative character of assignees and executors should be stated in the commencement, though it would suffice if it appeared in the other parts of the declaration. (See, also, 1 Chitty PL, 284.) That I think is this case. The defect, if any, was a formal one, and the title should be deemed amended according to the allegations and the proof.
It is further claimed the surrogate had no jurisdiction to grant the letters. The surrogate having passed upon the question of there being assets in the county, it is at least doubtful whether that question can be reviewed in a collateral proceeding. (Roderigas v. East River Savings Institution, 63 N. Y., 460.) The letters were certainly prima facie evidence. (Belden v. Meeker, 47 N. Y., 307.) And there is no finding of fact to the contrary, or request to find, There was in fact no evidence to rebut the presumption in their favor, but such as tended to sustain it. The letters were properly received in evidence.
The appellant further claims the court erred in finding that the land described in the complaint was sold under the foreclosure. The answer to this is that there is no exception to this finding. Besides, the concession in the case was undoubtedly intended to go just as far as the finding goes.
In construing the bond, the court below held the plaintiff could recover the amount of the penalty with interest from the time of the breach, being the expiration of the two years named in the bond as the time within which the lie'ns should be discharged.
In Juliand v. Burgott (11 Johns., 478) the condition was “ to see the lands freed from all incumbrances by the 20th day of February, *1651812.” No eviction was alleged, and on demurrer it was held not necessary. This is quite analogous to the present case, and nothing is cited to the contrary in this State. It was held different in Bradford's Admrs. v. Whitesides, 16 S. & R., 320), in 1827. It will be seen that the condition of bond in suit contains an absolute and definite provision, that if the obligors shall within a fixed time cause all liens, including a specified mortgage to be discharged, and in addition thereto should indemnify, etc., then to be void, otherwise to remain in force. This, as far as the main part of the condition is concerned, is substantially an agreement to do a particular thing by a fixed time or pay a certain sum of money.
Time is an essential of such a contract, and it cannot be thrown aside by construction, which would be the case if it were held to be only a bond of indemnity.
I am inclined to follow the case of Juliand v. Burgott, and treat the bond as for the payment of money in case of breach. If so, it would follow within the cases of Lyon v. Clark (8 N. Y., 148) and Brainard v. Jones (18 N. Y., 35) that interest would be allowable from the time of the breach.
It follows the judgment should be affirmed.
Present — Talcott, P. J., Smith and Merwln, JJ".Judgment affirmed.