John D. Roche, Respondent, v. John D. O'Connor, Individually, Defendant, and as Executor, etc., of Margaret Powers, Deceased, Appellant

John D. Roche, Respondent, v. John D. O’Connor, Individually, Defendant, and as Executor, etc., of Margaret Powers, Deceased, Appellant. Appearance by one sued individually and as executor, in each capacity by a different attorney. An action against the defendant individually and as executor of a decedent was commenced hy the service of a summons without a complaint December 15, 1903. December 31, 1903, Oswald W. Potter, an attorney, served a notice of appearance for the defendant individually. January 2, 1904, Adrian M. Pot- ■ ter, an attorney, served a notice of appearance for the defendant as executor. ■ The plaintiff’s attorney, not noticing that the defendant had appeared in his individual and executorial capacities by different attorneys, served a copy of the complaint upon Adrian M.' Potter, who had appeared for the defendant as executor; but did not serve such complaint upon Oswald W. Potter who had appeared for the defendant individually. Within twenty days after the service of the complaint, the defendant, as executor, served an answer upon the plaintiff’s attorney, who returned such answer upon the erroneous supposition that' the defendant, in his capacity as executor, had not appeared in the action. Upon a motion by the defendant as executor to compel the plaintiff to accept the answer, the Special Term granted-the motion upon condition that' Adrian M. Potter, the attorney for the defendant as executor, procure the consent to the substitution of the said Adrian M. Potter as attorney for the defendant individually in the place and stead of Oswald W. Potter, who had appeared for the defendant individually, otherwise it denied the motion. Meld, that the motion should have been granted absolutely; That the defendant was entitled to appear in his several capacities by' different attorneys. Appeal by the defendant, John D. O’Connor, as executor, etc., of Margaret Powers, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1904, denying a motion to compel the plaintiff to accept an answer interposed by the defendant as executor, except upon condition. Adrian M. Potter, for the appellant. Thomas McAdam, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action was brought against the defendant individually and as executor of the last will and testament of Margaret Powers, deceased. The summons without a complaint was served upon the defendant on the 15th day of December, 1903. On the 31st day of December, 1903, a notice of appearance for John D. O’Connor, individually, signed by Oswald W. Potter, attorney for the defendant, was served. On January 2,1904, the plaintiff’s attorney wrote to the defendant’s attorney, stating that he was in receipt of a notice of appearance on behalf of the defendant individually, but not as executor, and inquiring whether he was to understand that the defendant as executor intended to default. Thereafter, and on January second, there was served upon the plaintiff’s attorney a notice of appearance which stated that “the defendant John D. O’Connor, executor of the last will and testament of Margaret Powers, appears in this action ” and'demanded a copy of the complaint, which notice was signed “ Adrian M. Potter, attorney for defendant, John D. O’Connor, as Executor.” The plaintiff’s attorney, not noticing that the defendant had appeared as executor by one attorney and individually by another, on or about the 9th day of February, 1904, served a copy of the complaint upon the attorney who had appeared for John D. O’Connor as executor, but no service of the complaint was made .upon the attorney who had appeared ior the defendant individually. Within twenty days after the service of the complaint the defendant, as executor, served an answer upon the plaintiff’s attorney. This answer was returned to the attorney for the defendant as executor for the reason “that the defendant, John D. O’Connor, as executor in this action, is in default for want of notice of appearance herein and the plaintiff thereby entitled to judgment against him as such executor.” Whereupon the defendant as such executor made this motion to compel the plaintiff to accept the answer. The court below granted the motion upon condition that Adrian M. Potter, the attorney for the defendant as executor, procure the •consent to the substitution of the said Adrian M. Potter as attorney for defendant individually in the place and stead of Oswald W. Potter, who had appeared for the defendant individually, otherwise denying the motion, and from that order the defendant •appealed, claiming that he was entitled to have his answer received by the plaintiff’s attorney. I thiilk the motion should have been granted absolutely. Under the provisions of section 1815 of the Code of Civil Procedure an executor can he sued both individually and as executor, but when thus sued there are in effect two distinct. individuals against whom the action is brought, one as against the .defendant individually,, and another as against him as representing the estate of the decedent.. In such a case I can see no reason why he is not entitled to appear by different attorneys. It might well be that the interests would be antagonistic, and that the protection' of the estate would necessitate his taking, as executor, a position in antagonism to that which his own interest required that he should take when sued individually. As executor he is defending a claim against his testator. As an individual he is defending a claim against-himself. The mistake, was caused by the plaintiff’s attorney not noticing that the defendant had appeared individually by one attorney, and as executor by another, but the answer served by the defendant as executor was in time, and the plaintiff should have received it. . The position taken by the plaintiff in returning the answer is untenable. ' The notice of appearance stated that the defendant executor appeared, and the notice of appearance is signed by the attorney as , attorney for O’Connor as executor. By this notice of appearance the defendant as executor appeared in the action, and was not in default for want of appearance, as claimed by the plaintiff. The order appealed from should be reversed, with ten dollars, costs and disbursements, and the motion granted, with ten dollars costs. Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.