Wamsley v. H. L. Horton & Co.

34 N.Y.S. 306 | N.Y. Sup. Ct. | 1895

. FOLLETT, J.

A sole defendant, who has died during the pend-ency of an action, cannot by Ms attorney plead his own death as a defense to the action. Nor can any defense be interposed by or in the name of a dead defendant. The fact that the defendant is a corporation does not alter the rule. In case a sole defendant dies, all subsequent proceedings taken by the plaintiff in the action, before the defendant’s representatives are brought in, are void. A judgment entered under such circumstances would be invalid. When it is shown that a sole defendant has died, it is usual to enter a suggestion of the fact on the record, which suspends all subsequent proceedings until the representative is brought in. It is very clear that a dead defendant cannot plead its death or any other fact as a defense. The authority of the attorney of record to act further in the case ceases upon the death of the client, and he can take no further steps in the action under his original retainer. We are unable to see on what principle any of the defenses interposed by this second amended answer can be demurred to. This answer ought not to have been received by the plaintiff’s attorney, and, if filed with the clerk of the court, it should have been stricken out. A notice of motion to strike out such an answer may be served upon the person who assumed to serve and file it. The record before us is a strange one, and, we think, without precedent. We have a judgment asserting that a dead defendant has interposed a valid defense, and awarding it costs on the trial of an issue of law. We think the practice is without precedent, and without authority, and that neither the second amended answer nor any of the papers subsequently served or entered are valid, and they form no part of the record in this case, and that the second amended answer and all subsequent proceedings should be vacated and set aside, without costs to either party. All concur.