Schutz v. Morette

• Decision Date: 21 May 1895
• Citation: 146 N.Y. 137,40 N.E. 780
• Parties: SCHUTZ v. MORETTE.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 137

40 N.E. 780

SCHUTZ

v.MORETTE.

Court of Appeals of New York.

May 21, 1895.

Appeal from supreme court, general term, First department.

Action by Marie Schutz against Joseph Morette, as executor of Margaretha Metzger. From a judgment of the general term (31 N. Y. Supp. 39) affirming an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed.

John S. Davenport, for appellant.

J. George Flammer, for respondent.

ANDREWS, C. J.

The authorities establish that an executor or administrator may state an account of dealings of the testator or intestate, and that an action or an insimul computassent may be maintained against him, in his representative character, to recover a claim ascertained and adjusted on such accounting. Segar v. Atkinson, 1 H. Bl. 103; Ashby v. Ashby, 7 Barn. & C. 444. When the account relates to transactions between the executor or administrator and another party, upon claims not existing at the death of the decedent, although they grow out of matters connected with administration, the action lies only against the executor or administrator personally. In the one case the judgment is de bonis testatoris; and in the other, de bonis propriis. Reynolds v. Reynolds, 3 Wend. 244;Gillet v. Hutchinson, 24 Wend. 184. The complaint is not demurrable, therefore, on the ground that an action on an account stated will not lie against an executor, in his representative character, upon an accounting between him and the plaintiff. It is important, however, in determining whether the complaint states a cause of action upon an account stated, to consider the essential characteristics of that liability. The cause of action in such case is not the obligation originally created when the items of indebtedness arose. It is the agreement of the parties, made after the transactions constituting the account, that a certain balance remains due from the one to the other, and a promise of the party found to be indebted to pay to the other the sum so ascertained; and, in suing in this form of action, it is unnecessary for the plaintiff to set forth the subject-matter of the original debt. 1 Chit. Pi. 358. The doctrine of account stated, and the remedy thereon, is said to have been founded originally on the practice of merchants. Sherman v. Sherman, 2 Vern. 276. But its scope has been extended so as to embrace an account with items on one side only, and when the transaction has no relation to trade and there were no mutual dealings. The stating of an account is in the nature of a new promise. Holmes v. D'Camp, 1 Johns. 34. The complaint in this action neither avers that an accounting has been had between the parties in respect of the alleged debt set forth in the verified claim presented to the defendant, nor that any balance was ascertained or found to be due from the testatrix to the plaintiff, nor that the defendant had promised to pay any amount whatever, nor are there any averments of equivalent import. See ‘Form of Count,’ 2 Chit. Pi. 90. These essential facts are left to be inferred from the allegations that the verified claim set forth had been presented to the defendant pursuant to notice, and that, although a reasonable opportunity for examination into its validity was had, the executor had not disputed or rejected it. The complaint is based upon the assumption that an omission by an executor to reject or dispute a claim presented to him against the estate he represents, pursuant to notice, justifies an inference of all the facts which are essential to constitute a cause of action on an account stated. It is true that under the present system of pleading a complaint on demurrer is deemed to allege what can be implied by reasonable intendment from the allegations therein. Marie v. Garrison, 83 N. Y. 14. But this does not, we conceive, help the plaintiff. The doctrine that an account rendered becomes an account stated after the lapse of a reasonable time for examination by the party against whom it is rendered, and he makes no objection, is, in general, founded upon a just inference that a party against whom a claim is made will dispute it, if incorrect or unfounded. His silence operates as an admission of the correctness of the account, and prima facie establishes the claim in favor of the party presenting it. Lockwood v. Thorne, 18 N. Y. 285. But the doctrine has, from the nature of the case, a much more restricted application when the plaintiff relies upon the silence of an executor to whom a claim against the estate he represents has been presented. He is not presumed to be personally cognizant of the transactions out of which the claim arose. It would subject the estates of decedents to great danger if mere silence of the executor should be regarded as an admission of a claim presented, and relieve the claimant from establishing it in the ordinary way, and put upon the estate the burden of affirmatively establishing mistake or error. The office of executor or administrator is one exceedingly necessary and useful, and must, in frequent circumstances, be assumed by persons unskilled in legal matters;...