Opinion
March, 1909.
Gordon S.P. Kleeberg, for appellant.
Morris Plante, for respondent.
"In order to determine whether the defendants are sued in their representative capacity, the title, allegations and demand are to be considered as a whole" (Williamson v. Stevens, 84 A.D. 518, 524); and, so considering, it is apparent that the plaintiff declares against the defendant as an individual, for work, labor and services performed at his special instance and request. To the last separate defense of the defendant, the plaintiff demurs, on the ground that it is insufficient in law, and so it is and so it has been adjudged by the court below. Claiming in that defense that the plaintiff was employed by him in his capacity as assignee under a general assignment for the benefit of creditors, executed and filed by Albert H. Gross and Philip Kleeberg, copartners, to furnish him information concerning entries in the books of account of said firm and to furnish schedules for presentation to the Supreme Court on his accounting, and that he notified the plaintiff of the proceedings for his discharge, requesting it to present any claim which it might have against the defendant for said services, and alleging that by judgment rendered therein he had been fully discharged from all claims and obligations therefor, he interposes no legal defense to the claim of the plaintiff. "True, he says that what he did he did as assignee; but this is not conclusive as a legal construction of what he did, or in what capacity he acted. As assignee he could not bind the assigned estate by an executory contract, having no relation to the obligations of the assignor. Schmittler v. Simon, 101 N.Y. 554. But this fact does not prevent his incurring a personal liability where another has acted upon the faith of his promise" (Roozen v. Clonin, 13 A.D. 190, 194), because "the assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that, or outside of its terms, he is powerless and without authority." Matter of Lewis, 81 N.Y. 421, 424. If, without funds, necessity arises for expenditures to protect the estate from spoliation, he may either make them himself, trusting to being allowed for them in the passing of his accounts; or he may resort to the court for authority to engage others to do it upon the credit of the fund. The defendant, however, by his pleading, has not brought himself within such exception, and it may not be presumed in his behalf. The interlocutory judgment sustaining the demurrer of the plaintiff to said defense of the defendant must, therefore, be affirmed.
Interlocutory judgment affirmed, with costs, with leave to defendant to serve an amended answer upon payment of the costs in this court and in the court below within six days.
GILDERSLEEVE and DAYTON, JJ., concur.
Interlocutory judgment affirmed, with costs, with leave to defendant to serve an amended answer upon payment of costs.