CHAPTER VI.

ABATEMENT AND REVIVOR.-SUPPLEMENTAL PLEADING.

BEFORE passing on to the ulterior proceedings consequent on the joinder of issue, these remedies, involving a change, more or less material, in such issue, arising out of subsequent events, require consideration. They will be treated in the order of the title.

192. Abatement and Revivor.

The provision of the Code on this subject is contained in section 121, already given in full in book II., chapter I., section 31, under the head of Parties. Being short, a re-citation will be convenient. It runs thus:

§ 121. (101.) 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 the person aggrieved, may, in its discretion, order that the action shall 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.

The last clause was added on the amendment of 1862; that immediately previous, on that of 1857. The first clause of the section was in the original Code, having been altered in 1849.

By the amendment made in section 132, in 1862, the court is also authorized to remove a notice of lis pendens from the file, at any time after an absolute abatement.

(a.) ABATEMENT.

The test of the abatement or non-abatement of an action is, as will be seen, whether the cause of action does or does not survive or continue. If it be of such a nature as to die with the person, the abatement, on death before verdict, is complete and final; in other cases, it is remediable. A technical abatement does not, in fact, take place; but, in cases of death or disability, it is virtually impossible to continue the action, until the proper measures have been taken.

In actions for personal tort, the abatement, by death of either party before verdict, is, as above stated, complete; death after verdict is especially provided for by the section, as now amended. But it has been held that, in the statutory action for death by negligence, the cause of action continues, and that the suit may be revived, as against the executors of a defendant. Doedt vs. Wiswall, 15 How., 128; Yertore vs. Wiswall, 16 How., 8; overruling Norton vs. Wiswall, 14 How., 42.

And, although technically sounding in tort, an action for injury to property, survives in the same manner as an action on contract. Vide 2 R. S., 448, § 1; Haight vs. Hayt, 19 N. Y., 464.

Replevin is not, however, an action of this nature, but, on the contrary, it is fully abated by the death of a party. Hopkins vs. Adams, 5 Abb., 351; 6 Duer, 685. See also Burckle vs. Luce, 1 Comst., 163. See likewise cases below cited, with reference to ejectment.

In a case of personal tort, the civil death of a party works a complete abatement. Freeman vs. Frank, 10 Abb., 370. And, in other actions, imprisonment for a term of years works an abatement pro tempore, and involves the necessity of a revivor. O'Brien vs. Hagan, 1 Duer, 664. And, where the death of a party before judgment, though not actually proved, is to be presumed, it will render any subsequent proceedings irregular. Gerry vs. Post, 13 How., 118.

But death of a party, after decree, works no abatement, and subsequent proceedings to carry out the directions of the court will be equally valid. Thewing vs. Thwing, 18 How., 458; 9 Abb., 323; Lynde vs. O'Donnel, 21 How., 34; 12 Abb., 286.

The dissolution of a corporation works no abatement, but the action may be still continued in the corporate name, or in that of its trustees. New York Marbled Iron Works vs. Smith, 4 Duer, 362.

Death of a party, after the hearing of a cause by the court, but before its actual decision, has been held to work no abatement. Judgment may be entered, nunc pro tunc, as of the day of trial, and the remedy of the representative will be to come in and appeal. Ehle vs. Mayer, 8 How., 244. See also Diefendorf vs. House, 9 How., 243. It is not analogous to the case of the death of a party after trial, but before

verdict. See also as to the entry of judgment, nunc pro tunc, where delayed by reason of exceptions taken, Crawford vs. Wilson, 4 Barb., 504 (524).

The death of an appellant, pending an appeal, has no effect upon its prosecution, but his representatives may, nevertheless, claim to have the suit revived, as against them, even when of a personal nature, in order to secure their rights, for the purposes of an ulterior appeal, where admissible. Miller vs. Gunn, 7 How., 159. See also, as to their rights in respect to the prosecution of such appeal, 2 Abb., 203. See likewise 2 R. S., 185, sections 117 to 119. In Warren vs. Eddy, 13 Abb., 28, it was held, that the respondent could not take an affirmance by default, after the death of the appellant, and that, in such case, the proper course was to have an administrator appointed, and the action revived, in the name of such administrator.

Beach vs. Gregory,

In the Court of Appeals, the right of continuance of an appeal by the representatives of a deceased appellant may, it seems, be secured by motion to that tribunal, without any application to the court below, the provisions of section 121, not being applicable. Hastings vs. McKinley, 8 How., 175. But, in the event of a new trial being ordered, it would seem that a motion below would then be necessary.

The death of a sole plaintiff works an absolute abatement, and no proceeding whatever can be subsequently taken in the suit, until it is duly revived. Jarvis vs. Felch, 14 Abb., 46.

The death of a judgment-debtor, abates supplementary proceedings against third parties. Hazewell vs. Penman, 13 How., 114; 2 Abb., 230. The death of a plaintiff, prevents the subsequent issuing of execution in his name. Bellinger vs. Ford, 21 Barb., 311; Thurston vs. King, 1 Abb., 126; Jay vs. Martine, 2 Duer, 654. And death of a party, after the argument of a motion, suspends any entry of the decision, until the suit has been revived. Reed vs. Butler, 11 Abb., 128.

No abatement takes place in ejectment, by reason of the death of any of the parties, except in the case of a sole defendant. Vide 2 R. S., 308, section 32. Such a death abates the action, and a new case of action accrues against the succeeding occupant. Putnam vs. Van Buren, 7 How., 31.

So also, a transfer of all the interest of a sole defendant, puts an end to the action. The plaintiff has a new cause of action against the transferree. Mosely vs. Albany Northern Railroad Company, 14 How., 71; Mosely vs. Mosely, 11 Abb., 105. See, however, per contra, Waldorp vs. Bortle, 4 How., 358.

The title of parties claiming to have succeeded to the right of a deceased plaintiff in ejectment, must be clear, and there must be no conflict between them, otherwise the court will not order a substitution. St.

John vs. West, 10 How., 253. See also previous decision in same case, 4 How., 329; 3 C. R., 85.

The section makes, as will have been seen, express provision as to the case of a transfer of interest, otherwise than by death, marriage, or other disability. In such cases, the rule is to continue the action in the name of the original party; but the court may allow the transferree to be substituted. This will, of course, be effected, by means of an ordinary motion; the granting or not granting it, lies in the discretion of the court, and no conditions seem to be imposed as to the time within which the motion is to be made, or the manner in which it is to be framed-such as are imposed in the case of an application on the ground of death or disability.

Where the object of such a substitution was to make the original plaintiff a witness, the court refused to allow it, except on terms. Harris vs. Bennett, 6 How., 220; 1 C. R. (N. S.), 203; Murray vs. General Mutual Insurance Company, 2 Duer, 607. And, on such an application, the court may provide for the defendant's right to costs, as against the original party. Sheldon vs. Havens, 7 How., 268. Such an assignment, pending the suit, will have no effect on its prosecution, or on the rights of the parties, even when a substitution has been applied for and denied. Ford vs. David, 1 Bosw., 569. Nor will such a substitution be granted on motion of the original plaintiff, without notice to the assignee. Howard vs. Taylor, 5 Duer, 604; 11 How., 380.

Where such a substitution is made, without notice to the opposite party, the assignee remains subject to all equities between his assignor and such party. Terry vs. Roberts, 15 How., 65. And, before allow ing a substitution, the court will provide for those equities. Howard vs. Taylor, supra. See, as to the general powers of the court, to make a substitution of the above nature, where proper, Hastings vs. McKinley, Selden's Notes, Oct. 7th, 1853, p. 19; Banks vs. Maher, 2 Bosw., 690; McGown vs. Leavenworth, 2 E. D. Smith, 24; 3 C. R., 151.

An order for substitution may, it seems, be resisted, on the ground of the existence of a defence, personal to the plaintiff proposed to be substituted. Hastings vs. McKinley, 1 E. D. Smith, 273.

Where the plaintiff's demand has been assigned absolutely, the defendant may move that the assignee be substituted, or the complaint dismissed. Sherman vs. Coman, 22 How., 517.

Where, in an action against two defendants, jointly and severally liable, judgment has been taken against one, without service on the other, the action is spent, and cannot be continued, as against the defendant not served, in favor of a subsequent assignee. East River Bank vs. Cutting, 1 Bosw., 636.

In the case of an abatement by death, the section makes, as will be seen, a substantial difference in the mode of obtaining the remedy, where the application is made at once, or where it is delayed for more than one year after the occurrence of that abatement. In the latter case, a supplemental complaint is necessary; in the former, the relief is obtainable on motion. Allen vs. Walter, 10 Abb., 379. An application to the court is equally necessary in either case. Johnson vs. Williams, 2 Abb., 229.

The court cannot continue, on motion only, after the year has gone by. Green vs. Bates, 7 How., 296; Coon vs. Knapp, 13 How., 175; Johnson vs. Williams, 2 Abb., 229. If the application be made within the year, a supplemental complaint will not be necessary. Gordon vs. Sterling, 13 How., 405. If afterwards, the old practice in relation to a bill of revivor and supplement must be substantially followed. Green vs. Bates, supra.

See, as to the continuance of the former practice, in cases antecedent to the Code, notwithstanding the retrospectiveness of the section, Spier vs. Robinson, 9 How., 325; Phillips vs. Drake, 1 C. R., 63; Vrooman vs. Jones, 5 How., 369; 1 C. R. (N. S.), 80.

The delay of the motion for more than one year involves, of necessity, the preparation and service of a supplemental complaint, with power to the defendant to answer, and to create new issues on the fresh matter tendered.

When the application to revive is made by the representative of a deceased plaintiff, the order is almost of course. In clear cases, it may even be made ex parte, especially where the defendant has not appeared; but, as a general rule, notice must be given. Thayer vs. Mead, 2 C. R., 18. It is, primâ facie, of course, and, even when the defendant alleged facts in opposition, controverting the right of action, the court refused to try the question on affidavits, and granted the order. Wing vs. Ketcham, 3 How., 385; 2 C. R., 7.

But an action cannot, it has been held, be revived in the name of an assignee of the representative of a deceased party. The doctrine of privity has never been carried so far. See Rogers vs. Adriance, 22 How., 97.

On abatement by the plaintiff's death, the defendant is entitled, as of right, to an order that the suit be continued in the name of the plaintiff's representative. Ridgeway vs. Bulkeley, 7 How., 269. If the latter neglect to do so, the course of the defendant is to obtain an order requiring such representative to continue, and to file a supplemental complaint, when necessary, or that the original complaint be dismissed with costs. Jarvis vs. Felch, 14 Abb., 46; Green vs. Bates, 7 How., 296; Chapman vs. Foster, 15 How., 241.