Colegrove v. Breed, 2 Denio 125

Colegrove v. Breed

2 Denio 125 | N.Y. Sup. Ct. | 1846

By the Court, Beardsley, J.

The justice erred in dia missing the cause and rendering judgment against the plaintiff on the ground that the official term of the defendants had expired, and other persons had been chosen in their stead. Upon this the statute is direct, for it declares that “ no suit commenced by or against any officers named in this article” (and trustees of school districts are of the number) “ shall be abated or discontinued by the death of such officers, their removal from, or resignation of their offices, or the expiration of their term .of office; but the court in which any such action shall be pending, shall substitute the names of the successors in such office, upon the application of such successors, or of the adverse party.” (2 R. S. 474, § 100.) If the successors of these defendants had applied to be substituted as defendants in the suit, that should have been done; but no such application appears to have been made on their part, nor did the plaintiff apply to compel such substitution. Had he done so, I think the application would have been unavailing; for that branch of the statute which authorizes the adverse party to apply for and compel a substitution of new parties is inapplicable to a justice’s court. Although the defendants in cases of this description are prosecuted officially, still the judgment when recovered binds them personally. (Id. 476, § 108.) Such a judgment can in no case be legally rendered, until the court has acquired jurisdiction over the persons of the defendants. If they appear and consent to be substituted in that character, that gives the justice jurisdiction over them; but 1 am not aware of any mode by which the new trustees of a school district can be compulsorily required to appear as defen *127dants in an action pending against their predecessors, before a justice of the peace. As this has not been provided for, that clause of the section which authorizes the adverse party to apply for a substitution, cannot be extended to cases pending in the justice’s court. In the present case the new trustees made no request to be substituted, and the plaintiff could not compel them to become defendants. The suit therefore should have proceeded, and if a good cause of action was shown the plaintiff should have had judgment in his favor. In that event the judgment must have been paid, and the defendants reimbursed as provided by the statute. (§ 108, supra.) The judgment of the common pleas and that of the justice should be reversed.

Ordered accordingly.