Leggett v. Dubois

2 Paige Ch. 211 | New York Court of Chancery | 1830

The Chancellor.

The cases intended to be embraced by the 107th section of the title of the revised statutes which relates particularly to this court, (2 R. S. 184,) are those where the right of the deceased party vests in some or one of the survivors; so that a perfect decree may be made as to every part of the subject, of litigation, without any alteration of the proceedings, or bringing any new parties before the court. Such is the case of a suit brought by or against two or more executors, trustees or joint tenants ; where, on the death of one, the whole right of action or ground of relief survives in favor of or against the other. In such cases, there is in fact no abatement as to the survivors ; and upon a proper application by either party on affidavit, showing the fact of the death, and that the cause of action has survived, the court will order the suit to proceed. The 108th section provides for another class of cases, where some of the parties survive and the rights of the parties dying do not survive to them, but some other person becomes vested with the rights and interests, or is subject to the liabilities of those who are dead. In such cases, the complainants may proceed without making those persons parties, provided a decree can be made between the surviving parties without bringing such persons before the court. The decree, in that case, will not effect those in whom the rights of the deceased parties have become vested. Under a similar provision in the former statutes of this state, Chancellor Sanford decided that it was optional with the surviving complainant to revive the suit or to proceed without reviving; but that he was not bound to do either ; that he might elect to abandon the suit. (1 Hopk. R. 450.) The revised statutes have provided for such cases ; and the surviving defendants may now revive the suit if the complainants, or those who are entitled to revive in the first place, neglect to do so within such time as may be allowed by the court for that purpose. The proceedings to obtain a revival of the suit, under these provisions of the revised statutes, must be by petition ; and an order for that purpose cannot be granted on motion founded on affidavit only. The petition is the substitute for a bill of revivor. But a formal bill may perhaps be ■ necessary where ,the representatives of the deceased party cannot be found, or where they,are infants. (7 John. R., 613, per Van Ness, J.) It is undoubtedly the duty of the complainant to revive, if he wishes to proceed with the suit, and to have the benefit of the previous proceedings. And where a suit abates by the death of either of the parties pending an injunction, the defendant or his representatives may have an order that the com-r plainant' or Ms representatives revive - the suit, within a reasonable time, or that the injunction be dissolved. (1 Hen. & Munf. 203. I Cox’s Ca. 411. 2 id, 50.)

In this case, there has riot" as yet been any "unreasonable delay on the part of the complainant; but he must, within -sixty days, proceed-to revive the suit against the legal representatives of Sellon, or consent to proceed against the surviving defendants only, or the injunction must be dissolved. ■