121. Action when not to abate by death, marriage or other disability, &c. Proceedings in such case.

No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall 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. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.

At any time after the death, marriage or other disability of the party plaintiff, the court in which an 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.

1. Question. Has this section been amended since its passage in 1848 ?

Answer. It has, in 1849, 1857 and 1862, which last amendment reads as above. 2. Q. How did this section read in 1848, 1849 and 1857 ?

A. As follows:

$101. [1848.] No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court on motion, at any time within one year thereafter, may allow the ac

tion to be continued by or against his representative or suc cessor in interest. In case of any other transfer of interest, the action shall 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.

121, [1849.] No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall 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.

$121. [1857.] No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall 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. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.

Questions.

3. Q. Did this section of the Code apply to pending actions, commenced prior to the 1st of July, 1848?

4. Q. Can the actions under the Code corresponding to the former actions of ejectment and replevin, be continued under this section, on the death of a sole defendant, against his heirs at law, or those succeeding to his interest?

5. Q. Who are proper parties to bring actions under the statutes of 1847 and 1849, for causing death, by wrongful act, neglect or default of the defendants?

6. Q. What companies or associations, and what officers are capable of suing and being sued under the statutes of 1849 and 1851, in relatim to suits by and against joint stock companies and associations?

7. Q. Does this section apply to a defendant in a cross bill, as well as in an original suit?

8. Q. Does a sentence to the state prison for a felony, for a term of years only, of a plaintiff or defendant, abate the action?

9. Q. Has an appellate court authority to allow a party to be substituted in place of one, who has died pending the appeal?

10. Q. Where and how will the assignee of a cause of action transferred by the plaintiff, and who acquires all the plaintiff's interest therein, be substituted as plaintiff in the action? 11. Q. What causes of action at law are assignable, so as to authorize the assignee to sue in his own name? And do they include those against a common carrier for non-delivery of goods

12. Q. When may a grantee of lands, transferred by a plaintiff in an action claiming such lands, or transferred by operation of law, be substituted as plaintiff in the action?

13. Q. On the death of a party to a pending action, before verdict or judgment, is it absolutely necessary, to the further prosecution of the action, that his legal representatives be substituted in his place, where the cause of action survives?

14. Q. Is leave to continue or a revival necessary under this section, upon the death of one of several parties, where the right of action continues in the survivor ?

15. Q. How is an action to be revived or continued upon the death of a sole defendant? 16. Q. Can a motion to continue the action on the death of a party, be made after one year from such death? And what proceedings are necessary to revive or continue an action, either by motion or supplemental complaint?

17. Q. Were all proceedings in partition commenced in the late court of chancery, subsequent to the death of one of the defendants, without a revival, absolutely void as against the heirs of such deceased defendant!

18. Q. Does the death of a prosecuting creditor pending an action upon a bond given by the judgment debtor, for his application under the act of 1831, for an assignment of his property, &c., and before his application is heard, abate the action on the bond?

19. Q. How are actions to proceed by and against overseers of the poor, where they go out of office pending the action?

20. Q. What is the effect upon supplementary proceedings pending, by the death of the judg ment debtor?

21. Q. Can proceedings upon an arbitration and judgment entered thereon, be revived or continued on the death of a party thereto?

22. Q. Does a cause of action in replevin survive?

23. Q. What provisions are made by law for the revival and continuance of actions for the recovery of any real property?

3. Q. Did this section of the Code apply to pending actions commenced prior to the 1st of July, 1848?

A. In Phillips agt. Drake and others, 1 Code, R., 63, Special Term, October, 1848, EDMONDS. J., it was decided, that in an action commenced before the 1st of July, 1848, was held that it was necessary, in order to revive the suit subsequent to that time, to proceed by bill of revivor and supplement, unless the party sought to be made a defendant, would voluntarily come in as a party to the action. This section (then § 101), only gave the court power to allow the successor in interest, to be substituted in the action. In Vrooman agt. Jones, 5 How., 369, Special Term, January, 1851, WILLARD, J., it was decided, that the effect of the continuance of the action against the successor in interest, is to make him liable, in case of a recovery by the plaintiff, for all the costs which had been previously incurred. It was not competent for the legislature, after the rights of the parties had become fixed, so to alter the law as to subject the purchaser (who is now proposed to be substituted), to the costs of the action against the original defendant. At the time he made the purchase (which was three years before the Code was adopted), the law cast upon him no such burden as is now sought to be imposed upon him. He contracted with reference to the law as it then stood. Had the law remained unaltered,

he could not have been responsible for the cost of the action against the original defendant. Therefore, this section of the Code, so far as it was made applicable to existing suits, commenced before the Code took effect, and to transfers of interest made before that time, is unconstitutional.

In Spier, Kinnicutt and others agt. Robinson, Greenfield and another, 9 How., 331, Special Term, February, 1854, CADY, J., it was decided, that this section, by the amendment of the Code, was made applicable to civil suits pending on the first day of July, 1848; it relates to actions which would thereafter abate, and not to actions which had abated, before that day. Therefore, a suit in equity which abated by the death of the complainants, prior to July 1st, 1848, must be decided without any reference to the Code, but under the Revised Statutes and the former practice of the court of chancery.

4. Q. Can the actions under the Code, corresponding to the former actions of ejectment and replerin, be continued under this section on the death of a sole defendant, against his heirs at law, or those succeeding to his interest?

A. In Waldorf agt. Bortle, 4 How., 358, Special Term, June, 1850, PARKER, J., it was decided, that an action brought against a sole defendant, to recover the possession of land, might be continued, after the death of the defendant intestate, against his heirs at law claiming to have succeeded to his legal rights and to own the land.

But in Putnam agt. Van Buren, 7 How., 22, General Term, May, 1852, WILLARD, J., it was decided, that in an action under the Code to recover the possession of land, corresponding to the former action of ejectment, the death of a sole defendant abates the action, and it cannot be continued under this section of the Code, against his heirs at law, as his successors in interest. By the death of the original defendant a new cause of action is given to the plaintiff, provided a new occupant succeeds to the possession. If the premises are left vacant, without an occupant or a claimant, the plaintiff may enter without suit. In such case there is clearly nobody against whom he could bring a fresh action, and no reason is perceived why the original action should be continued. The effect of the substitution of the heirs as defendants would be, in case the plaintiff prevailed, to cast upon the former the whole expense of the litigation. Thus, without any fault of their own, and without reference to the fact whether any assets are received by them, they become imersed in a heavy bill of costs. Such a result would scarcely have been anticipated, and was surely not intended by the legislature. The public good never required that the rule of survivorship should be extended to torts, where the action was by and against a sole party. (This decision is adverse to and overrules that of Waldorf agt. Bortle. Supra.)

In St. John and others agt. Croel, 10 How., 257, General Term, September, 1854, WELLES, J., it was decided, that it is equally necessary under this section, as under the Revised Statutes, in actions of ejectment, to show that persons asking to be made plaintiffs, have succeeded to the title of the deceased plaintiff. And the persons applying are bound to show a clear prima facie case before they can be permitted to come into the litigation. Therefore, where it is asked that A. B. and C. D. be substituted as plaintiffs, and in case that cannot be done, then that the court determine which of the two was the legal successor to the title; it is asking more than should be required of the court. An infant son of a deceased plaintiff, claiming as heir, and a devisee in trust, claiming under the will of the deceased plaintiff, both cannot be substituted as plaintiffs, because their claims are, to some extent, hostile to each other at least, are not in harmony. And where it appeared that the son was an alien, and thereby incapable of inheriting lands in this state, and the trustee under the will did not take the legal estate but only a power in trust; neither could be substituted as plaintiff, in place of the deceased plaintiff.

In Ash agt. Cook, 3 Abb., 389, Special Term, November, 1856, BIRDSEYE, J., it was decided, that it is not necessary that the widow of a deceased sole plaintiff, who dies intestate, in an action of ejectment, should join in the petition, or be made a party to the subsequent proceedings, where her right of dower has not been assigned. Until such assignment, the widow has no estate in the lands, but a right of action merely.

In Hopkins agt. Adams, 5 Abb., 352, Superior Court, General Term, October, 1857, DUER, J., it was decided, that where a sole defendant, in an action for the recovery of possession of specific personal property (formerly replevin), dies before verdict or judgment, the action abates; and the court has no power in such case to order the action to be continned against the personal representatives of the defendant.

In Mosely agt. Mosely, 11 Abb., 105, Special Term, September, 1860, PARKER, J., it was decided, that in an action under the Code, to recover the possession of land, corresponding to the former action of ejectment, the death of a sole defendant before verdict, abutes the action; and the court has no power to authorize a continuance of the action, by sup plemental complaint, or otherwise, against the heirs at law. The action of ejectment, it seems, stands on the same ground as that of replevin, in reference to this question.

In Kissam agt, Hamilton, 20 How., 369, Special Term, December, 1860, BOCKES, J.. it was decided, that the heirs at law, or successors ia interest of a sole defendant who dies before verdict, obtain no right of revivor or of substitution under 2 R. S., 308, $32. This stature does not reach the case of the decease of a sole defendant before verdict or judg

ment. It is in aid of a case, in which a plaintiff or one of several defendants in ejectment dies before verdict or judgment. But had the reports of the referees in the cases in which this motion is made, been signed and delivered before the death of the sole defendant, the practice would have been plain under 2 R. S., 387, § 4 and the last clause of this section of the Code, to allow the cases to proceed in the same manner as in cases where the cause of action now survives by law. The report of referees is within the spirit of the statute regulating the entry of judgment after the death of a party, on verdicts rendered by juries. By 2 R. S., 387, 5, a verdict is absolutely void, unless actually rendered before the decease of the party. Referees do not conclude their denot decided until liberations or arrive at a result until the report is made. The case the report is signed; until then they may open it for for further evidence; reconsider and change their conclusions. The statutes relating to verdicts should apply to reports of referees. Therefore, an action of ejectment or for possession of real property, against a sole defendant, who dies before a report of referees is made, or verdict rendered, abates absolutely, and no judgment upon such report or verdict can be entered nunc pro tunc, because such report or verdict is null and void.

5. Q. Who are proper parties to bring actions under the statutes of 1847 and 1849 for causing death by wrongful act, neglect or default of the defendants?

A. The answer to this question will be found under section 111, Q. 11.

6. Q. What companies or associations, and what officers are capable of suing and being sued under the statutes of 1849 and 1851, in relation to suits by and against joint stock companies and associations?

A. The answer to this question will be found under section 113, Q. 11.

7. Q. Does this section apply to a defendant in a cross hill as well as in an original suit? 4. In Hatfield agt. Bloodgood, 1 Code, R. N. S., 212, General Term, November, 1849, it was decided, by the COURT, that the provision of the Code authorizing a suit to be revived against the executor of a deceased party, applies as well to the defendant in a cross bill as to the original suit.

8. Does a sentence to the state prison for a felony, for a term of years only, of a plaintif or defendant, abate the action?

A. In O'Brien agt. Hagen, 1 Duer., 664, Special Term, January, 1853, OAKLEY, Ch. J., it was decided, that when either the plaintiff or defendant, in a civil action, is sentenced to imprisonment in the state prison for a felony, although only for a term of years, the suit is abated.

In Graham agt. Adams, 2 John. Cases, 408, October, 1801. it was decided, by the COURT that where the defendant in a eause is sentenced to the state prison for life, he is considered as civilly dead, and the suit is abated.

In Freeman agt. Frank, 10 Abb., 370, Special Term, February, 1860, BALCOM, J., it was decided, that though civil death abates an action for personal tort, an answer setting up that defendant is civilly dead is inconsistent. The rights and liabilities of a person civilly dead, are as entirely gone as though he were actually dead; and his estate may A deceased person, be administered upon in like manner as if his body were a corpse.

whether he died a civil or natural death, cannot have an attorney. His executor or administrator represents him, and no other person can act or speak for him. The defendant, by answering, proves he is alive; and when he avers in his answer that he is dead, he is not to be believed.

9. Q. Has an appellate court authority to allow a party to be substituted in place of one who has died pending the appeal;

A. In Miller agt. Gunn, 7 How., 159, Special Term, October, 1852, HARRIS, J., it was decided, that where in an action for slander the plaintiff obtained verdict and judgment, from which the defendant appealed to the general term; and pending the appeal the defendant died: On a motion to continue the action in the name of the personal representatives of the deceased defendant (Code, § 121), Held, that although it was not necessary in respect to the pending appeal; yet that the personal representatives should be allowed to be made parties in reference to a further appeal if they desired.

In Hastings agt. McKinley, 8 How., 175, Court of Appeals, June, 1853, JOHNSON, J., it was decided, that although it may be doubtful whether this section applies to the court of appeals, yet, where a party in a cause dies after the return is filed in that court, it having then obtained jurisdiction, has the power to allow his legal representatives or parties in interest to be substituted.

In Shaler & Hall Quarry Company, agt. Brewster, 32 N. Y. R., 472, June, 1865, it was decided by the COURT, that it appears by affidavit, on moving the case for argument, that the suit has abated by the death of the respondent. The cause should stand over to the next term without prejudice, and with leave to move for the substitution of the parties in interest.