The cause of action having arisen out of contract, survived the death of the plaintiff, and passed to the administrator of her estate. (Zabriskie v. Smith, 13 N.Y. 333; McGregor v.McGregor, 35 id. 220; Potter v. Van-Ranken, 36 id. 623.)
At common law when a sole plaintiff to a legal action died before trial, the action abated; and there was no way to revive or continue it. (1 Burrill's Prac. 287; Benjamin's Executors v.Smith, 17 Wend. 208" court="N.Y. Sup. Ct." date_filed="1837-05-15" href="https://app.midpage.ai/document/benjamins-executors-v-smith-5514753?utm_source=webapp" opinion_id="5514753">17 Wend. 208.) If the cause of action survived or continued, a new action had to be brought in the name of the representatives of the deceased plaintiff. In
1848 the legislature changed the common-law rule in this State by this broad declaration: "No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue." By section 755 of the present Code it is declared that "An action does not abate by any event, if the cause of action survives or continues." As the action did not abate, but is still in court, no revivor is necessary. It is a mere question of bringing in the proper parties to continue the action. (Livermore et al. v. Bainbridge, 49 N.Y. 128.) Section 121 of the former Code provided that, "In case of the death, marriage, or other disability of a party, the court, on motion at any time within one year thereafter, or afterward, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest." By the Code (1879) in force when this motion was made it is provided that, "in case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel an action to be continued by or against his representative or successor in interest." The present Code abolishes the supplemental complaint, and now all applications to continue an action in case of the death of a party must be made by motion, and upon proper affidavits showing the facts, and the court must grant the order. Even under the old Code, where the language was permissive, it was held by this court that in an action at law "no mere lapse of time would absolutely defeat an application for its continuance on a supplemental complaint in the name of a representative of a deceased party." (Evans v.Cleveland, 72 N.Y. 486" court="NY" date_filed="1878-02-12" href="https://app.midpage.ai/document/evans-v--cleveland-3627725?utm_source=webapp" opinion_id="3627725">72 N.Y. 486.)
This rule works no injury to the adverse party, for under section 121 of the Code of 1862, and section 761 of the present Code, the court may, upon the application of the living party, prescribe a time not less than six months, nor more than a year within which the representative of the deceased party must be substituted, or in default it may direct that the action abate. The defendant could, therefore, at any time after the death of the
plaintiff in 1864, have compelled the necessary proceedings to be taken to continue the action by the proper parties, or in default thereof, that the action abate. We think the learned court below erred in holding that section 757 of the present Code had no application to a case where a sole plaintiff and a sole defendant are both dead. We regard the case of Greene v. Martine (21 Hun, 136, affirmed in this court in 84 N.Y. 648" court="NY" date_filed="1881-02-08" href="https://app.midpage.ai/document/holyoke-v--union-mutual-life-insurance-company-3612887?utm_source=webapp" opinion_id="3612887">84 N.Y. 648) as directly in point and conclusive upon the question here involved. In that case, the sole plaintiff and the sole defendant were both dead, the plaintiff having been dead for about fourteen years. The only difference between that case and the case at bar is, that the application to continue that action under the Code of 1877 was made by supplemental summons and complaint, and the application in the case at bar is made by motion under the amendment to the Code passed in 1879. Section 757 of the Code of 1877 read as follows: "In case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a supplemental summons and complaint, or in its discretion upon a motion, if made within one year after the decedent's death, in a proper case, allow or compel the action to be continued by or against his representative or successor in interest." In 1879 the legislature amended the section by striking out the words "A supplemental summons or complaint, or in its discretion," and also the words "If made within one year after the defendant's death in a proper case," leaving the section to read as follows: "Section 757. In case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to be continued by or against his representative or successor in interest." What the court was compelled to do upon a supplemental summons and complaint under the Code of 1877, it now must do upon motion. The case ofGreene v. Martine must, therefore, be considered a controlling authority in this case.
The plaintiff's motion should have been granted.
The orders of the Special and General Terms should be reversed, without costs.
All concur.
Orders reversed.