49 Misc. 2d 1023 | N.Y. Sur. Ct. | 1966
The administrator of decedent’s estate, who was appointed by this court on June 21, 1956, instituted this proceeding under section 211-b of the Surrogate’s Court Act to determine the validity of a claim based on a default judgment that was rendered against the decedent, after his death, in the United States District Court in Katchikan, Alaska. The facts with reference to the claim are as follows:
The decedent purchased dock property in Ketchikan, Alaska, on June 19, 1951 for $25,000. He gave a purchase-money mortgage for the full purchase price and used the property to operate a salmon cannery. He defaulted in his mortgage payments and foreclosure proceedings were instituted by the mortgagee on March 29, 1954. The Territory of Alaska (hereinafter referred to as the respondent) was made a party defendant as it had filed a tax lien in the sum of $59,582,93 against the
The administrator challenges the validity of the judgment because it was rendered against the decedent after his death without the action being revived against decedent’s representatives in the manner required by rule 25 (subd. [a], par [1]) of the Federal Rules of Civil Procedure which, as in effect in Alaska in 1954, provided in part as follows: ‘ ‘ If a party dies and the claim is not thereby extinguished, the court within 2 years after death may order substitution. If substitution is not so made, the action shall be dismissed as to the deceased party.”
The respondent advanced two reasons for upholding the validity of the judgment. The first reason, that revival of the action was unnecessary because the court had acquired jurisdiction over the decedent prior to his death, is legally unsound. It has been held that, under rule 25 (subd. [a], par. 1), as in effect in Alaska in 1954, survival of an action, upon the death of a party is made dependent upon a timely substitution, because the rule operates as a Statute of Limitations against revivor and as a mandate to the court to dismiss an action not revived
Accordingly, the court determines that the judgment has no binding effect as a claim against the assets of the decedent’s estate, as it was rendered against the decedent after his death without being revived against his representatives in the manner required by rule 25 (subd. [a], par. [1]) of the Federal Buies of Civil Procedure, as in effect in Alaska in 1954. The claim is disallowed.