Equitable Life Assurance Society of United States v. Wilds

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7,1919, affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment on the pleadings and directing a dismissal of the complaint. The complaint alleged that the husband of defendant’s testatrix made two bonds and mortgages on properties on Wall street and Broadway and Wall and Pearl streets in New York city. He died seized of said properties and also of an equity, worth $38,000, on property on Seventy-seventh street. He left a will devising the Seventy-seventh street property to his wife (in lieu of dower). Judson B. Wilds and the United States Trust Company of New York became his executors and trustees. Some years after the husband’s death the plaintiff foreclosed said two Wall street mortgages' and took deficiency judgments for $30,328.83 and $86,484.15 against said executors ■—• which they have not collected except for $4,721.30. Testatrix, after the commencement of one of the foreclosure actions and before the commencement of the other, sold the Seventy-seventh street equity (worth $38,000) to one Brower. She died on March 16, 1916, before one and after the other deficiency judgment was entered against her husband’s executors. This action is brought in aid of the deficiency judgments to recover from the defendant $38,000 as and for the value of the Seventy-seventh street devise which testatrix had sold. The complaint was held insufficient on the grounds : (1) That it failed to allege that there was not sufficient personal property left by Mr. Smith to pay his debts; and (2) that it failed to allege that the claim had been presented to Mrs. Smith’s executors before suit.