Allen v. Walter

10 Abb. Pr. 379 | New York Court of Common Pleas | 1860

By the Court.—Brady, J.

—This action is in form an action at law. It is brought to recover damages for the breach of a contract made between the parties. The defendant died pending the suit, and before verdict or interlocutory judgment. Prior to the Code the action would have abated upon the death of the defendant, and it could not be continued against his personal representatives. (2 Rev. Stat., 386 ; Keene a. Lafarge, 16 How. Pr. R., 377.) If the action was one pending in equity, prior to the Code, such would not have been the rule. The court could have ordered the suit to stand revived against the representatives of the defendant, upon the petition of the complainant. Ko bill of revivor was necessary. (2 Rev. Stat., 184, §§ 109-114; 1 Hoffman's Ch. Pr., 370.) The provisions of section 121 of the Code, so far as relates to the motion within the year therein contemplated, are analogous to the rule in equity prior to the Code, at least in reference to - a sole defendant. (See Moore a. Thayer, 10 Barb., 259.) Where the motion is not made within the year, the relief desired may be had by supplemental complaint by the same section. This distinction in the mode of obtaining the relief is said to be a premium on diligence (1 Whitt. Pr., 544); but I do not understand the judges to have so declared. The result of an examination of the cases adjudicating section 121 is, that the statute has limited the power of the court to permit the action to be continued on motion (Greene a. Bates, 7 How. Pr. R., 296 ; Coon a. Knapp, 13 Ib., 175; Gordon a. Sterling and others, Ib., 405), unless made within a year after the death of the party; and if not made within that time, the continuance will only be permitted on a supplemental complaint. The office of a supplemental complaint, in a case like this, would be to state the death of the defendant, and the appointment of his personal representatives, in addition to the statement of the commencement of the action, and of the allegations in the complaint, and the proceedings had in the action. The supplemental complaint of section 121, so far as it affects this case, is the bill of revivor of the late Court of Chancery. (1 Barb. Ch. Pr., 679 ; 2 Ib., 59, 68; 1 Hoff. Ch. Pr., 377.) A supplemental complaint was one which sets forth facts material to the case occurring after the commencement of the action, or at least unknown to the plaintiff or complainant when the action was commenced; or to add parties, or remedy a defect in the prayer of the original bill. (1 Hoff. Ch. Pr., 393 ; 1 Smith’s Ch. Pr., 525.) Ho new facts are necessary to the success of the plaintiff. The additional allegations are only necessary to continue an. action already commenced. Ho new interests or rights have intervened, rendering what was called a bill of revivor and supplement, under the former system of equity practice, necessary. The action must be against the personal representatives. The personal estate must be exhausted before the heirs can be sued in respect of their shares of the real estate. (3 Rev. Stat., 5th ed., 750; Mesereau a. Ryers, 3 Comst., 261.) The omission of the plaintiff to present his claim to the representatives of the defendant, assuming that to have been necessary, which I do not believe, does not affect his right to proceed. It limits his recovery to the amount of personal property unadministered. (3 Rev. Stat., 5th ed., 176, §§ 44, 45 ; Baggot a. Boulger, 3 Duer, 160.) Hor does the delay in proceeding with the action deprive him of his right to continue it. An application to the court by the representatives would have relieved them from the delay. (Greene a. Bates; Keene a. Lafarge, supra.)

I do not agree, for these reasons, to the proposition that unless the application to continue is made within a year after the abatement of the suit, the abatement becomes absolute. I think section 121 was designed to embody the practice in equity, and to abolish bills of revivor, and bills of revivor and supplement in all cases to which its provisions apply, and to allow the continuance of such cases by simple motion if made within a year, or by a supplemental complaint after the expiration of that period. Such is the view taken of it generally, as stated by Judge Hilton, in his opinion delivered at the special term. I do not think either, that this is a case in which, as a matter of discretion, we should refuse to permit the action to be continued. As already shown, the representatives of the defendants have been guilty of laches, and in that respect are in no better position than the plaintiffs. Whatever may be the view taken of section 121, where there has been any transfer of interest in any action, it is quite clear, to my mind, that in this case the motion to continue was properly granted, and that the order of the special term should be affirmed.

Ordered accordingly, with $10 costs.