77 N.Y. 480 | NY | 1879
This action is against the above named defendants as sureties upon a joint undertaking dated June 12, *482
1874, given upon appeal. After the action was at issue, Sackett died, and this motion was made, after the Code of Civil Procedure went into effect, to revive the action against his executors, and to substitute them as defendants in his place. The motion has been denied, on the ground that death put an end to the obligation of the surety, upon the authority of the following cases: (Getty v. Binsse,
This undertaking is dated June 12, 1874. Subsequently it was provided, in section 758 of the Code, that "the estate of a person or party jointly liable upon contract with others shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do for the proper disposition of the matter." It is claimed by the plaintiff that this provision changes the former rule, and that it prevents the discharge of Sackett's estate. The answer to this claim is, that the Federal Constitution forbids the passage of any law by a State impairing the obligation of contracts, and hence this provision cannot have the effect claimed upon such undertakings executed before its enactment: (Ogden v. Saunders, 12 Wheat., 213; Matter of Lee Co.'s Bank,
The order should be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Order affirmed.