Chautauqua County NyArchives Court.....Blood, Charles Vs. Sarah Kane 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.

CHARLES BLOOD, Respondent, v. SARAH S. KANE, Appellant.

A counter-claim, existing in favor of a decedent, cannot be set up by his 
executrix in an action brought against her individually.

In an action, brought to recover the sum of eighty-five dollars for furnishing a 
casket and for the burial of the body of her husband, the defendant set up in 
her answer a counter-claim, being an indebtedness upon an open account owing by 
the plaintiff to the defendant's husband in the lifetime of the latter. It 
appeared that the contract for her husband's burial was made by the defendant 
individually, and not as the executrix of her husband's will.

Held, that as the defendant had no title to or interest in the alleged counter-
claim, except as she obtained the same by virtue of the letters testamentary 
issued to her, the counter-claim was not available to her in this action.

Barlow v. Myers (24 Hun, 286) distinguished.

Appeal from a judgment of the County Court of Chautauqua county, entered upon 
the report of a referee, in the office of the clerk of Chautauqua county, August 
9, 1888.

Stearns & Kinsley, for the respondent.

Holt & Holt, for the appellant.

Macomber, J.:

The action is brought to recover the sum of eighty-five dollars for furnishing a 
casket and for the burial, etc., of the body of one James Kane, the husband of 
the appellant, and also to recover the sum of twenty-five dollars for like 
services rendered in behalf of the appellant for the removal of the body of her 
brother from the cars to the respondent's rooms, and for the use of a hearse 
therefor.

No question seems to have been raised in regard to the promise of the appellant 
to pay for the services rendered by the respondent to her deceased brother, and 
she is consequently liable for the amount (ten dollars) allowed by the referee 
therefor. The appellant set up in her answer a counter-claim, being an 
indebtedness upon an open account, owing by the respondent to the appellant's 
husband in the latter's lifetime. The referee has rejected all evidence of this 
alleged counter-claim on the ground that the same is not available to her in 
this action, which is against her individually, and not as the executor of her 
late husband's last will, and has given judgment for the further sum of eighty-
five dollars asked for in the complaint, with interest from the time the 
services were rendered. There is no evidence in the case, as made up, that the 
defendant undertook by her agreement to make compensation for the plaintiff's 
services out of the estate of her husband only; on the contrary, she appears 
absolutely to have contracted individually for such payment. The only question, 
therefore, in the case is whether, having undertaken individually to pay the 
debt, and the action being against her individually, and not as the personal 
representative of her husband's estate, it is competent for her to defeat the 
plaintiff's claim, in whole or in part, by the counter-claim set up in the 
answer. The counter-claim (Code, § 501) must be itself a complete cause of 
action, in favor of the defendant against the plaintiff, existing at the time of 
the beginning of the action. (Mayo v. Davidge, 44 Hun, 342; Matter of Hill, 17 
Abb. N. C., 273.) The defendant had no title to or interest in the alleged 
counter-claim, except as she obtained the same by virtue of letters testamentary 
to her. The open book account could not pass title to her by mere delivery of 
it, and for that reason this case is distinguishable from the case of Barlow v. 
Myers, (24 Hun, 286). The true test is, in this instance, could the defendant 
have brought an action against the plaintiff to recover upon the indebtedness 
owing to her husband without alleging and proving that she had acquired, by 
virtue of the will and of letters testamentary, title to the account. Section 
1814 of the Code of Civil Procedure requires an action to be brought in the 
representative capacity of the party when the cause of action is held by him as 
executor or administrator. (See, also, Bucklin v. Gallup, 105 N. Y., 453.)

The judgment appealed from should be affirmed, with costs. 

Barker, P. J., and Dwight, J., concurred. 

Judgment affirmed.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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