Gordon v. Sterling

13 How. Pr. 405 | N.Y. Sup. Ct. | 1856

Harris, Justice.

The proceedings of the plaintiff previous to the trial had not been strictly regular. Upon the death of Phrenic C. Gordon, all that was necessary, in order to put the case in a condition to proceed, w'as to obtain an order, under the provisions of the 121st section of the Code, that the action be continued against those who had succeeded to the interest of the deceased party. It is usual to give notice of such an application ; but in a case like this, where one of the surviving defendants has no interest in the question, and would have no right to resist the motion, I think notice is unnecessary. The application being made within a year after the death of the party, a supplemental complaint was Unnecessary. The supplemental complaint, in this case, did not, in any respect, change the facts as they had been presented in the original complaint. Mrs. Sterling was in no way affected by it, and had the order of the 30th of August gone no further than to authorize the suit to be continued by a supplemental complaint, she ought not to have been heard to complain of the want of notice.

But by the order of the 30th of August the complaint was also amended by striking out the words “ administrators of Henry Sterling, deceased.” Of such an application all the defendants who had appeared were entitled to have notice. In this case the amendment was wholly unnecessary. It had been stated in the complaint that the title of Catharine Wiley, one of the children of Henry Sterling, deceased, had become vested in the defendants Richard S. Warner and Phrenic C. Gordon. This was true. It was added that they were administrators of the estate of Henry Sterling, deceased. This was also true 5 but the fact was quite immaterial. The rights of the parties, so far as this suit, at least, is concerned, would in no way be affected by this allegation. The words sought to be stricken out by this amendment might just as w'ell have been left to stand in the complaint, and so the plaintiff’s counsel seems, at length, to have concluded ; for after the order of the 30th of August, so far as it affected Mrs. Sterling, had been set aside, he proceeded, as I think he had a right to do, to try the action without the amendment.

Technically, it may be, there was still an irregularity in the proceeding, arising from the fact that the amendment of the complaint authorized by the order of the 30th of August, while it had been set aside as far as it concerned Mrs. Sterling, was still in existence as to the other defendants. But the amendment being, as we have seen, in respect to a matter wholly immaterial, it ought not now to be allowed to affect the validity of the proceedings.

But a conclusive answer to this application is, that Mrs. Sterling is meddling with that which in no way concerns her. She was a proper, though not a necessary party to the suit. Had the lands in question been sold, her right of dower might have been extinguished; but as actual partition has been made, her interest is in no way affected by the judgment. She is now, as she was before the' suit was brought, entitled to dower in the whole estate. (See Tanner agt. Niles, 1 Barb. 560.) Why, then, should she be permitted to interfere with a judgment which cannot affect her rights 1

The motion should be denied, with costs.