How, where, and by whom, an order may be obtained. to the court for an order directing such substitution, provided always that such motion is made within one year from the time of the death of the party. Allen v. Walter, 10 Abb. 379; Coon v. Knapp, 13 How. 175; Gordon v. Sterling, id. 405; Green v. Bates, 7 id. 296. After a year has elapsed since the death of the party, an application by motion is no longer proper, and the suit can only be continued by filing a supplemental complaint. No application to the court for permission to file this complaint is necessary or proper. It is a matter of strict right. Matter of Bornsdorff v. Lord, 41 Barb. 211; S. C., 17 Abb. 168; Roach v. La Farge, 43 Barb. 616; S. C., 19 Abb. 67. This last method of obtaining a substitution of parties will be treated in a subsequent part of this work. See Pleading, Supplemental Complaint. b. How, where, and by whom, an order of revival may be obtained. On the death of a sole plaintiff, the personal representatives of the deceased are the proper parties to apply to the court for leave to continue the action. Jarvis v. Felch, 14 Abb. 46. See note to Allen v. Walter, 10 id. 381. But it is provided by the amendment to the Code in 1862, that at any time after the marriage or other disability of the party plaintiff, the court in which the action is pending, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discretion, order that the action be deemed abated unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months nor exceeding one year from the granting of the order. Code, $121. This amendment renders the practice, indicated in prior decisions on this point, obsolete as authority. See Jarvis v. Felch, 14 Abb. 46; Williamson v. Moore, 5 Sandf. 647; De Agreda v. Mantel, 1 Abb. 130, 140. On the death of one of several plaintiffs, in an action at law, no order reviving the suit between the survivors need be obtained; but such order may nevertheless be obtained on the application of either party. Lachaise v. Libby, 21 How. 362; S. C., 13 Abb. 6; Taylor v. Church, 9 How. 190; S. C., 12 N. Y. Leg. Obs. 156. But, where a sole defendant dies pending an action, and before judgment, his personal representatives have no right to an order requiring the plaintiff to continue the action against them. It is the privilege of the plaintiff, in such cases, to elect whether to make them parties in the place of the deceased defendant, or to How, where, and by whom, an order may be obtained. require that the action be discontinued. Keene v. La Farge, 16 How. 377; S. C., 1 Bosw. 671; Kissam v. Hamilton, 20 How. 369, 377; Hopkins v. Adams, 5 Abb. 351; S. C., 6 Duer, 685. But after judgment, and on appeal, the personal representatives of the deceased may insist on being made parties as a matter of right. Schuchardt v. Remiers, 28 How. 514; S. C., 1 Daly, 459. And when an intestate, not being an inhabitant of the State, dies out of this State, without leaving assets therein, and there is pending in the supreme court, or in the court of appeals, an appeal brought by such intestate from a judgment against him, the court in which such appeal is pending may order the judgment appealed from affirmed, with costs, unless the attorney for the intestate on such appeal procure the action to be revived within six months after notice to perfect such appeal by the substitution of a representative of the intestate in this action. Code, § 121. On the death of one of several defendants, the plaintiff is usually the proper person to apply for an order reviving the suit. See Union Bank v. Mott, 27 N. Y. (13 Smith) 633. But, on the failure of the plaintiff to bring in the personal representatives of the deceased, the surviving defendant may move that the complaint be dismissed as against him, unless the plaintiff continue the action against the persons representing the interest of the deceased defendant. Chapman v. Foster, 15 How. 241. It is usual and advisable in all cases to give notice of an application for a change of parties, to all parties in interest. Gordon v. Sterling, 13 How. 405; Howard v. Taylor, 11 id. 380; S. C., 5 Duer, 604. See McGown v. Leavenworth, 2 E. D. Smith, 24; Terry v. Roberts, 15 How. 65. Generally speaking, at least eight days' notice of motion should be given, where no shorter time is prescribed by an order to show cause. Code, § 402. But where a change of parties becomes necessary in actions against public officers, on account of death, or the other causes specified by statute, at least fourteen days' notice must be given of an application to substitute a successor in office, and this notice must be personally served on such new defendant. 2 R. S. 474, § 101 (496), Edm. ed. The motion should be made at special term, and is brought on to be heard in the same manner as other motions. The moving party should support his application by affidavits showing prima facie, a succession to that interest by the party sought to be substituted. St. John v. Croel, 10 How. Effect of a transfer of the interest of a sole plaintiff. 253. The adverse party may, on their part, litigate this question by opposing affidavits or other proof. But the merits of the action cannot be tried upon the motion. Wing v. Ketcham, 3 How. 385; S. C., 2 Code R. 7. If the affidavits of the moving party establish the fact of the death of the original party, and the succession to that interest by the party to be substituted, the court will make the requisite order. c. Effect of the order. It was formerly customary in equitable actions, for the order of revivor to provide for giving the new parties the benefit and advantage of the proceedings already had in the action. But it is not now necessary that the order should contain any such provisions, in order to give effect to the prior proceedings in the cause. The legal effect of the order is, to authorize the continuance of the proceedings from the point at which they were interrupted by the death of the party, and to give to the parties substituted the benefit of the proceedings already had in the action. Moore v. Hamilton, 48 Barb. 120;. 44 N. Y. (5 Hand) 666. d. Appeals from the order. An order of revival allowing actions to be continued in the name of survivors, and substituting the representatives of the deceased parties, is appealable as affecting a substantial right. St. John v. Croel, 10 How. 253; Code, § 349; Wilson v. Duncan, 11 Abb. 3. ARTICLE XII. BY TRANSFER. Section 1. Effect of a transfer of the interest of a sole plaintiff. a. In general. The Code provides that, in case of any transfer of interest other than that resulting from the death, marriage, or other disability of a party, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. Code, 121. The effect of such transfer, therefore, is to give to the transferee the right to apply to the court for an order substituting himself in the place of the original plaintiff, to whose rights he has succeeded. If the transferee fails to apply to the court to be thus substituted as plaintiff, the action must be still continued in the name of the original plaintiff, as the transferee Effect of the transfer of the interest of one of several plaintiffs. alone is authorized to make the application, and the defendant cannot compel him to become a plaintiff without his consent. Packard v. Wood, 17 Abb. 318; Emmet v. Bowers, 23 How. 300; Howard v. Taylor, 11 id. 380; S. C., 5 Duer, 604. Even on the application of the transferee, it is within the discretion of the court to allow or disallow the motion. Where a substitution cannot prejudice any right or remedy of the defendant, it is almost a matter of course to grant the motion. When the opposite result would be effected by the change, the court will either deny the motion or grant it on such terms as will protect the defendant from injury. Howard v. Taylor, 11 How. 380. No order of substitution will be made, unless special circumstances are shown to satisfy the court of its propriety or necessity. Murray v. General Mutual Ins. Co., 2 Duer, 607. Neither can any order of the court, under section 121 of the Code, have the effect of substituting one who has the right to sue, for one who had no right to sue. East River Bank v. Cutting, 1 Bosw. 636. Neither can the assignee of a cause of action, who has been substituted on an ex parte application, acquire any greater rights than his assignor, nor avoid any liability to set-offs which existed against the demand while in the hands of the assignor. Roberts v. Carter, 24 How. 44; S. C. reversed, 38 N. Y. (11 Tiff.) 107; 6 Trans. App. 253. See S. C., 17 How. 341; Terry v. Roberts, 15 id. 65. Section 2. Effect of the transfer of the interest of one of several plaintiffs. Where one of two tenants in common of personal property assigns his interest in an action for the conversion thereof to the defendant in the action, this transfer of interest will not abate the action so far as the other plaintiff is concerned, but the latter may proceed in the name of both plaintiffs, or amend by striking out the name of the plaintiff who has released his right of action. Gock v. Keneda, 29 Barb. 120. So where one plaintiff in an action transfers his interest to his co-plaintiff, and the assignee dies, the court may let in the personal representative of the deceased plaintiff, and yet deny his application to be allowed to prosecute as sole plaintiff. Sheldon v. Havens, 7 How. 268. Petition of assignee of plaintiff's title to continue action in (Name of court.) his own name. In the matter of the petition of A. B. to be substituted as plaintiff in an Petition by receiver-Notice of motion. action pending between C. D., plaintiff, and E. F., defendant. day of To the supreme court of the State of New York: The petition of A. B. respectfully shows to the court: I. That on or about the 187, C. D., the plaintiff above named, commenced an action in this court against one E. F. (state the cause of action and its condition, including the proceedings had in the cause). II. That, after the commencement of said action, to wit, on the day of 187 the said C. D., plaintiff in said action, duly assigned and transferred (state the property or nature of the interest assigned) for a valuable consideration, to your petitioner, who is now the lawful owner and holder thereof. III. That (state the special circumstances that render the substitution necessary), wherefore, your petitioner prays that he may be substituted as plaintiff in said action in the place of said C. D., and that the said action may be continued in his name, and that he may have such other and further relief as the court may deem just. (Date.) (Signature.) A B., being duly sworn, says, that he has read (or heard read) the foregoing petition, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true. (Jurat.) Petition by Receiver. (Signature.) (The same as in preceding form to "II.") II. That pending said action, to wit: on the day of 187 , upon application duly made by W. M., a judgment creditor of said C. D., in proceedings supplementary to execution, your petitioner was, by the order of Hon. of the justices of the supreme court (or county judge for the county of ), duly appointed receiver of the property of the said C. D. Wherefore, etc. (as in preceding form). one Notice of Motion. (Entitled as in petition.) Please take notice: That on the annexed petition, and on the pleadings in this cause, I shall move the court at a special term to be held at day of on the 187 at o'clock, in the forenoon, or as soon thereafter as counsel can be heard, for an order directing the action referred to in |