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ARTICLE II.

PROCEEDINGS AS TO CHANGES IN PARTIES.

[Proceedings to ascertain proper defendants to be joined, and the mode of bringing them in, are in Vol. I, p. 704.] SECTION I. PLAINTIFF'S PROCEEDINGS AS TO CHANGE.

II. DEFENDANT'S PROCEEDINGS AS TO CHANGE.
III. PROCEEDINGS OF A THIRD PERSON TO COME IN.

1. General principles.

8. — bringing in originally omitted 2. Actions survive if the cause of

party. action does.

9. Intervention. 3. Power of the court; on assign- 10. - bringing in one who has acment, assumption, etc.

quired the interest of an origi4. — on death.

nal party. 5. — on death of a co-party.

11. Mode of objecting to omission. 6. — on death of a sole party.

12. Laches. 7. The practice; bringing in one by

virtue of a new right or liabil

ity arising in the action. 1. General principles.] — Proceedings relating to changes of parties are subject to four classifications, viz. : (1) substitution; (2) interpleader; (3) intervention; and (4) the duty of the court to refuse to proceed in the action because of the absence of necessary parties whose rights cannot be saved. Each of these classifications is regulated by a different statute, and subject to different rules.

2. Actions survive if the cause of action does.] — Under code procedure actions and special proceedings3 no longer abate by any event, if the cause of action, or the right to the relief sought, survives.

The rule that a personal action dies with the person does not apply to a corporation, and, therefore, practically all species of actions may be continued and revived against those who succeed to the property rights of the defunct corporation. Nor does it apply when the party who is deceased merely held the right to sue, without the beneficial interest.

2 N. Y. Code Civ. Pro., $ 755. This was also the rule in equity before the Code. Clarke 1. Mathewson, 12 Pet. 164.

3 Does not apply to Surrogate's Court. Re Schlesinger, 36 App. Div. 77, 55 N. Y. Supp. 514.

4 For the similar test as to assignability, see Vol. I, p. 504.
5 Shayne t. Even. Post Pub. Co., 168 N. Y. 70, 10 Anno. Cas. 237.

6 Meekin r'. Brooklyn Heights R. R. CO., 164 N. Y. 145 (action for negligently causing death). The death of the defendant abates the action. Hegerich i. Keddie, 99 N. Y. 258.

In general the cause of action survives if it is on contract? or involves a claim to property, or is for a wrong done to property rights or interests, as for instance deceit by which plaintiff is injured in property.10 An action for damages to the person, 11 or for any purely personal injury, 12 or for purely personal relief, 13

7 Holsman v. St. John, 90 N. Y. 461 (action for money paid); McNulta v. Huntington, 62 App. Div. 257, 70 N. Y. Supp. 897.

Otherwise of an action for breach of promise of marriage. Wade v. Kalbfleisch, 16 Abb. Pr. (N. S.) 104, 58 N. Y. 282, 17 Am. Rep. 250 (holding action for breach of promise of marriage not to survive, because not technically “ on contract," nor concerning “ property rights or interests ”).

The liability of a joint surety survives under N. Y. Code Civ. Pro., 8 758, su perseding the rule in Wood v. Fiske, 63 N. Y. 245; Smith v. Kibbe, 31 Hun, 390.

8 Action for accounting. Halstead v. Cockcroft, 40 N. Y. Super. Ct. 519; Krumbeck 0. Clancy, 41 App. Div. 397, 58 N. Y. Supp. 727.

Replevin does not abate by death. N. Y. Code Civ. Pro., & 1736; Roberts r. Varsen, 23 Hun, 486.

9 (regin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192, 31 Am. Rep. 549, 56 How. Pr. 465; reaff'd, 83 N. Y. 595 (husband's action for loss of wife's services by injury by defendant's negligence, and for medical expenses, survives for this affects pecuniary rights).

But a parent's action for damages for seduction of daughter was held not to be within this rule, but to abate, in Holliday 1. Parker, 23 Hun, 71. . Heinmuller v. Gray, 13 Abb. Pr. (N. S.) 299, 35 N. Y. Super. Ct. 196 (trespass to personal property); Garden v. Strong, 158 N. Y. 407 (taxpayer's action).

10 Moore v. McKinstry, 37 Hun, 194 (fraud by which defendant gained a pecuniary advantage).

Shale v. Schantz, 35 Hun, 622 (slander affecting credit of firm plaintiff).

So an action based upon an attempt to cheat and defraud survives because it affect property rights. Hadcock r. Osmer, 4 App. Div. 435, 38 N. Y. Supp. 618. Otherwise of an actio. of a penal nature to hold a trustee of a corporation liable to its creditor for making a false annual report. Brackett v. Griswold, 103 N. Y. 425. Otherwise also of failure to file annual report. Stokes v. Stickney, 96 id. 323. But after judgment personal representatives of the deceased can be substituted. Blake 1. Griswold, 104 id. 613.

But the individual liability of a stockholder for the debts of his corporation by reason of the stock not being full paid, survives. Chase v. Lord, 6 Abb. X. C. 258, 77 N. Y. 1.

11 Cox r. N. Y. Central, 63 N. Y. 414 (personal injury from negligence); Hegerich v. Keddie, 99 N. Y. 258 (negligence causing death of intestate). In the latter action the substitution should be of the administrator de bonis non of the original decedent. Mundt v. Glokner, 24 App. Div. 110, 48 N. Y. Supp. 940; Hodges . Webber, 65 App. Div. 170, 72 N. Y. Supp. 508, 32 Civ. Pro. Rep. 208.

Moriority v. Bartlett, Id. 651 (wife's action under Civil Damage Act); S. P., Boor r. Lowery, 103 Ind. 468, 1 West. Rep. 548, 3 N. E. Rep. 151, 154.

12 Price r. Price, 75 N. Y. 244, 31 Am. Rep. 463 (deceit inducing void mai. riage). Otherwise after verdict, report or decision, in action for damages for a personal injury (N. Y. Code Civ. Pro., $ 764), unless it be set aside (Kelsey 0. Jewett, 34 Hun, ll, and cases cited).

13 Johnson t. Elwood, 82 N. Y. 362 (action merely for injunction against a trespass by defendant abates on his death).

Hopkins r. Hopkins, 21 Wkly. Dig. 174; Millady 1. Stein, 19 Misc. 652, 44 X. Y. Supp. 408 (holding that after the death of a party in divorce, the attor. ney could not proceed to enforce a previous order).

does not survive. Where a negligent act causes injury to both person and property, two causes of action arise, one of which abates while the other survives.14 Where either plaintiff or defendant dies, the action, if based upon the two counts, may be revived as to the one which survives. 15

After judgment, in any case, and after verdict, report or decision in an action for a personal injury, the death of a party will not cause an abatement. 16

3. Power of the court ;17 on assignment, assumption, etc.] — Upon a transfer of right or devolution of liabilitylia (except by death) the court may, in its discretion, direct the transferee or person becoming liable to be substituted or joined.18

Such direction may be given on the application of either party or of the third person.

If no such direction is given, the action will continue in the original names, unless the transfer or devolution resulted from death or from the absolute dissolution of a corporation."

In all cases an infant brought in must have a guardian ad litem appointed.

Of course a transfer of or subrogation to a portion of the right involved, prior to action begun, may make the transferee or one subrogated, a necessary co-plaintiff.20

4. — on death.] — Death of a defendant before process is served upon him, or appearance by him, is still held to abate the action so far at least as he is concerned (except in case of a joint

14 Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40.

15 See Forster v. Cantoni, 19 App. Div. 306, 46 N. Y. Supp. 118, 4 Anno. Cas. 375. The court suggest that the order of revivor might expressly adjudge that the cause of action which has abated has not been continued, or, the motion could be granted on condition that the plaintiff consent to strike out the abated count.

16 Code Civ. Pro., $ 764; Carr t. Rischer, 119 N. Y. 117.

17 The Code provisions (88 755 et seq.) do not apply to pending appeals. Riley 1. Gitterman, 24 Abb. N. C. 89.

17a N. Y. Code Civ. Pro., 8 756.

18 The trustee in bankruptcy is properly substituted in situations covered by the Federal statute. Patten v. Carley, 69 App. Div. 423, 74 N. Y. Supp. 993.

19 Burton v. Burton, 57 App. Div. 113, 67 N. Y. Supp. 1067; Fifth Nat. Bank v. Woolsey, 31 App. Div. 61, 52 N. Y. Supp. 827.

20 Munson v. N. Y. C. & H. R. R. R. Co., 32 Misc. 282, 65 N. Y. Supp. 848 (subrogation of insurance companies to portion of plaintiff's claim for damages).

debtor against whom judgment could go without service) ;21 for as to him the action is not deemed commenced; and a revival or continuance against his representatives without service of summons on them or appearance by them, is not allowed.”

Death of either party before verdict, report, or decision, actually rendered 23 absolutely prevents the rendering of a valid verdict, report, or decision against him ;24 but judgment in favor of a person deceased before verdict, report, or decision in his favor, may be merely irregular.25

In general, death after an accepted offer of judgment, or a verdict, report, or decision actually rendered, or interlocutory judgment entered, on an adjudication of issues, does not prevent final judgment thereon in the names of the original parties.26

5. — on death of a co-party.] — If a plaintiff dies leaving a co-plaintiff, or a defendant dies leaving a co--defendant, the action may proceed in favor of or against the survivors, as to whatever cause of action or any part thereof survives to or against the latter;

21 Long v. Stafford, 103 N. Y. 274.

22 Ludwig v. Blum, 43 N. Y. St. Rep. 616; Barron r. South Brooklyn Saw Mill Co., 18 Abb. N. C. 352 (holding that the conditional jurisdiction acquired under N. Y. Code Civ. Pro., 8 638, by the levy of a valid attachment upon property of a non-resident defendant, and the due commencement of service of summons by publication, is divested, and the attachment falls by the death of the defendant before such service is made complete by the continuance of the publication for the required period).

23 Signing of the referee's report, but without filing or delivery, is not enough. Matter of Venable, 104 App. Div. 531, 93 N. Y. Supp. 1074; Clark r. Pemberton, 64 App. Div. 417, 72 N. Y. Supp. 232.

24 N. Y. Code Civ. Pro., $ 765; Stevens v. Humphreys, 73 Hun, 199, 25 N. Y. Supp. 946; aff'd, 147 N. Y. 586. The rule is the same in a special proceeding. Matter of Venable, 104 App. Div. 531, 93 N. Y. Supp. 1074.

25 Smith 6. Joyce, 14 Daly, 73, 11 Civ. Pro, Rep. 257 (refusing to discharge a purchaser under such judgment). Contra, McCreery v. Everding, 44 Cal. 284 (setting a judgment aside in favor of a dead person, as a nullity).

26 N. Y. Code Civ. Pro., $ 763. This does not apply to judgments by default. Grant r. Griswold, 21 Hun, 509, 513; Smith v. Joyce, 14 Daly, 73, 11 Civ. Pro. Rep. 257. Nor to actions which abate, and are not preserved by section 764. Robinson v. Govers, 138 N. Y. 425. It contemplates an adjudication on the rights of the parties. A report on the usual reference to compute amount in foreclosure, where no issues are raised in the pleadings, other than by the usual general answer on behalf of an infant defendant, is not within the statute. Smith r'. Joyce (abore cited). Whether death, after leave to withdraw demurrer and answer has been granted, but before the lapse of the time allowed for so doing, is within section 763, seems unsettled. Affirmative — Clark's Estate, 5 Dem. 397, 12 Civ. Pro. Rep. 383. Negative — Secor v. Clark, 54 N. Y. Super. Ct. 461; Simmons r. Vanderbilt, N. Y. Daily Reg., Feb. 6, 1883. As to entry nunc pro tunc, see Mitchell v. Overman, 103 U. S. 62; s. c., with note, 22 Am. L. Reg. 607; Tuomy 1. Dunn, 77 N. Y. 515; Long r. Stafford, 103 id. 274.

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but the court has power to require or allow the successor or representative of the deceased to come in.27

If no one is to be brought in, it is usual simply to suggest the death upon the record.28

A personal representative is brought in by motion in the action, and it is not necessary that the order direct that the representative be served with supplemental summons or complaint (unless absence from jurisdiction necessitates a substituted service which cannot be made of an order).29

6. — on death of a sole party.] — If the cause of action, or one of several causes of action30 survives the death of a sole plaintiff or a sole defendant — and this applies to the death of a sole surviving plaintiff or defendant31 — the continuance of the action by bringing in the representative32 or successor in interest23 must now34 be effected by motion and order, without putting the applicant to a supplemental pleading, unless there are other facts, beside the succession, which should be alleged ;35 but in other respects the right to continue such a cause depends in equity upon the settled equity practice ;36 and the courts still exercise the same legal discretion as formerly to refuse the application in case of

27 N. Y. Code Civ. Pro., $$ 758, 759. As to Partition, see $ 1588; Ejectment, 88 1521-1523. If the liability is purely several, as in case of maker and indorser, it is usual to sever the action. In case of tort, plaintiff is usually left to bring a new action against the representatives of the deceased.

28 See Vol. I, p. 446.
29 Cit. Nat. Bank 1. Bang, 112 App. Div. 748, 99 N. Y. Supp. 76.
30 Brackett r. Griswold, 103 N. Y. 425.
31 Coit v. Campbell, 82 N. Y. 509.

32 That is, a representative over whom the court may exercise jurisdiction. McGrath v. Weiller, 98 App. Div. 291, 90 N. Y. Supp. 420 (declining to revive and continue an action against the non-resident executor of a non-resident defendant).

33 The devisee of real property may be such successor in interest. See Higgins v. Mayor, 136 N. Y. 214.

34 N. Y. Code Civ. Pro., $ 757.

35 This portion of the text was quoted as correctly stating the practice in Flannery v. Sahagian, 109 App. Div. 321, 95 N. Y. Supp. 643 (denying the motion of the defendant executor to require a supplemental complaint to be served upon him). See, also, Cit. Nat. Bank v. Bang, 112 App. Div. 748, 99 N. Y. Supp. 76.

The rule is the same when a representative party has resigned, and a successor has been appointed after action begun. Griswold v. Caldwell, 14 Misc. 299, 35 N. Y. Supp. 1057, 25 Civ. Pro. Rep. 122, 2 Anno. Cas. 211.

The death of the original party, and the right to substitution, cannot be litigated at the trial, as the order for substitution is a conclusive adjudication thereon. Gibson ». Nat. Park Bank, 98 N. Y. 87.

36 Coit v. Campbell, 82 N. Y. 509.

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