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laches such that, by analogy to the Statute of Limitations, revival ought to be precluded.
The period prescribed by the Statute of Limitations for bringing an action has usually been regarded, in equity, — if allowed to lapse after the right to revive and continue an action has accrued, and before applying to do so, -as sufficient reason for refusing the revival ; 37 but even in a legal action the lapse of that time is not necessarily, and as matter of law a flat bar, if the original action was seasonably brought. 38 And the better opinion is that the principles formerly applied in equity will still sustain the discretionary power of the court to refuse to allow a substitution for the purpose of continuance, alike in legal and in equitable actions ;39 unless the case has been such that the court might, under the statute as in the case of the death or marriage of the plaintiff*— have ordered that the action abate if not continued by the proper parties within a specified time; for this remedy affords a sufficient protection to the survivors, alike in common law and equity actions.41
7. The practice; bringing in one by virtue of a new right or liability arising pending action.] - Where one is to be brought in as defendant, not by way of substituting him in respect of a right or liability already represented by other parties, but because events occurring pending the action have created a new liability or right - as for instance if, pending foreclosure, a stranger to the action has covenanted for the payment of the mortgage debt,42 or if, in partition, a devisee of an estate in expectancy is born,43 or, in a patent infringement suit, a third person takes an interest with defendant, and infringes, 44 or if pending trial of negligence action against receivers of a railroad, a corporation purchases it,45 — he, or it, should be brought in by supplemental summons and com, plaint, 46 unless he himself makes application to be joined, or sub
37 Coit v. Campbell (above cited); Mason v. Sandford, 137 N. Y. 497. 38 Evans v. Cleveland, 72 N. Y. 486; Holsman v. St. John, 90 id. 461.
39 Lyon v. Park, 111 N. Y. 350; Mason v. Sandford, 137 id. 497; Pringle r. Long Island R. R. Co., 157 id. 100.
40 Y. Y. Code Civ. Pro., $ 761.
41 Markell v. Nester, 29 App. Div. 55, 51 N. Y. Supp. 852. In such a case, even, terms may be imposed upon granting the substitution. McInnis v. Gardiner, 26 Misc. 487, 57 N. Y. Supp. 471.
42 8. P., Prouty 1. Lake Shore, etc., R. R. Co., 85 N. Y. 272. Compare previous decision in 52 id. 363.
43 For the English rule, see Peter v. Thomas Peter, L. R., 26 Ch. Div. 181. 4 Parkhurst v. Kinsman, 2 Blatchf. 72, 8 N. Y. Leg. Obs. 73. 45 Winters v. King, 51 App. Div. 80, 64 N. Y. Supp. 496. 18 See Vol. I, p. 720.
mits to come in by way of amendment; in which case actual amendment of the record is desirable
Where the judgment in the action will fix or affect the liability of the one ultimately liable, as principal, he is held to be interested in the “subject of the action,” and entitled to intervene. 47
8. — bringing in originally omitted party.] – One who should originally have been made a defendant, but was then omitted, is brought in by plaintiff by supplemental summons and complaint, or by amendment in the manner stated in Volume I, p. 719.48
In an action for a tort, plaintiff will not be permitted, either by means of supplemental process, or by amendment of the original process and complaint, to bring in a joint tort--feasor whom he has omitted to include in the action as at first instituted. 49 Nor in an action at law, wherein only a money judgments is sought, and the title to no real, or specific or tangible personal, property is involved, can the plaintiff be compelled to bring in a third person as a defendant, either on the application of a present defendant, or on the application of the third person.
47 In Feinburg v. Am. Surety Co., 33 Misc. 458, 67 N. Y. Supp. 868, it was held that the principal debtor had a right to be allowed to intervene in an action upon an undertaking, to which he was not a party. The court considered that the principal was interested in the “ subject of the action," having been notified by the surety to defend the action. So held, also, where the obligation was a bond. Matter of Mason, 12 Misc. 77, 33 N. Y. Supp. 43. If the principal is allowed to intervene, he may set up any counterclaim he may have against the plaintiff or his assignor. Kinney v. Reid Ice Cream Co., 57 App. Div. 206, 68 N. Y. Supp. 325.
In Sauer v. Mayor, 10 App. Div. 267, 41 N. Y. Supp. 957, the one ultimately liable was permitted by order to appear and take part in the trial, and this was held proper.
48 A mere direction of the trial court that such a person be joined, who is then not represented and is given no opportunity to answer, is wholly ineffective. Hood v. Hood, 85 N. Y. 561; Lehrer v. Walcoff, 47 Misc. 112, 93 N. Y. Supp. 540.
49 Heffern v. Hunt, 8 App. Div. 585, 40 N. Y. Supp. 914; Ten Eyck v. Keller, 99 App. Div. 106, 91 N. Y. Supp. 169. Contra, Schun v. Brooklyn Heights R. R. Co., 82 App. Div. 560, 81 N. Y. Supp. 859. The true rule doubtless is, that after a plaintiff has made a deliberate election, with full knowledge, he does not show any reason for the exercise of the judicial discretion in his favor; but he should be allowed to join the other tort-feasor, upon showing newly-discovered facts establishing a joint liability. Lederer v. Adler, 51 Misc. 572.
50 Chapman v. Forbes, 123 N. Y. 432. Code Civ. Pro., $ 452, providing that where a complete determination of the action cannot be had without the pres. ence of other parties the court must direct them to be brought in, applies only to equitable actions. ld. And such section is construed as requiring only such parties to be joined as would have been necessary parties at the time the action was commenced. Collanan v. Keeseville, etc., R. R. Co., 48 Misc. 476.
The general proposition stated in the text yields, however, when the defendant is entitled, under section 820, to an order of interpleader.
51 Bauer v. Dewey, 166 N. Y. 402; Long v. Burke, 105 App. Div. 457, 94
9. Intervention.] - In an action of replevin, neither plaintiff nor defendant can be allowed to add a third person as a defendant against the latter's objection ;52 but the third person may be joined on his own application.53
A similar rule applies when the person sought to be joined has an interest in the subject of the action, which may be affected by the judgment.54
10. - bringing in one who has acquired the interest of an original party.] — Where the person proposed to be brought in, whether as a plaintiff or a defendant, is to be joined merely because, pending the action, he has acquired an interest in the subject of litigation from one who was an original party, effectually joined as such, the court have power to bring him in under the process and pleading already existing;65 and this is done by an order of substitution.
11. Mode of objecting to omission.] — A defect of parties, which existed at the commencement of the action, is waived by not taking it by answer or demurrer as the case may require, unless the defect is one which prevents the court from doing justice to the party before it,57 in which case the court should direct the action to stand over whenever the defect appears, until the necessary parties be brought in. 58
A defect of parties not existing at the commencement of the action, but which arose thereafter — as for instance by the death of one originally joined, may be objected to without pleading; and if objected to at the trial, it is error if the absent parties be
N. Y. Supp. 277. The same principle applies upon a reference of a disputed claim against an estate. Honigbaum v. Jackson, 97 App. Div. 527, 90 N. Y. Supp. 182.
52 Goldstein v. Shapiro, 85 App. Div. 83, 82 N. Y. Supp. 1038; King Co. v. Seed, 6 Misc. 4, 25 Ñ. Y. Supp. 115.
83 Rosenberg v. Salomon, 144 N. Y. 92, 1 Anno. Cas. 11. Upon showing an interest in the chattel, which may be affected by the action.
54 Montague v. Jewelers, etc., Co., 41 App. Div. 530, 58 N. Y. Supp. 715, 44 App. Div. 224, 60 N. Y. Supp. 680.
As to what is the subject of action within the rule, see Feinberg 1. Am. Surety Co., 33 Misc. 458, 67 N. Y. Supp. 868, and cases cited.
68 See Savage v. Sherman, 87 N. Y. 277. And unless the defendant secures a provision for service of a supplemental complaint alleging the transfer of interest, and raises an issue thereon, the transferee's title cannot be made an issue on the trial. Smith v. Zalinski, 94 N. Y. 519. 56 N. Y. Code Civ. Pro., § 499. 57 Bear 6. Am. Rapid Tel. Co., 36 Hun, 400.
58 Osterhoudt v. Supervisors, 98 N. Y. 239; Mahr v. Norwich Un. F. Ins. Co., 127 N. Y. 452.
necessary parties, to overrule it as too late and allow the action to
12. Laches.] — The court has power to refuse a revivor and substitution, or to deny an application to intervene, upon the ground of laches. 60
FORMS. 1112. Affidavit to move to strike out 1125. Affidavit to move to substitute a defendant who has died,
executor or administrator of leaving neither representa
deceased defendant (short tive nor assets subject to the
1120. Order that executors or admin1113. Affidavit to move to strike out
istrators of deceased defendand substitute parties after
ant show cause why action new trial ordered, and for
should nou continue against leave to serve supplemental
them. complaint, or for leave to 1127. Order continuing action by or amend.
against personal representa1114. Notice of motion (or order)
tives of a sole party, dethat an unnecessary party be
ceased. struck out.
1128. Order continuing action against 1115. Notice of motion (or order)
surviving defendants on the for leave to change a
death of one. plaintiff to a defendant. 1129. Order granting leave to con. 1116. Affidavit to obtain leave to add
tinue action against succesformal parties (with leave
sors in interest of a defendto amend).
ant. 1117. Order granting leave to add 1130. Order for leave to serve a supformal parties (and to
plemental complaint, bringing amend).
in as an auuitional defendant 1118. Affidavit to move for leave to
a third person who has asbring in a new-born infant.
sumed defendant's obligation. 1119. Notice of motion (or order) to 1131. Affidavit of attachment issued, bring in new-born infant.
and death of defendant be1120. Affidavit to move to bring in
fore publication of summons one who, pending the action,
completed. has made himself liable to 1132. Affidavit to move for substiiu. suit and injunction.
tion of public officer's S'c1121. Order, by consent, substituting
cessor. executors of deceased plain- 1133, Notice of motion for substitutiff, without prejudice to pro
tion of public officer's succesceedings had. 1122. Consent to entry of order. 1134. Order substituting successor of 1123. Affidavit of assignee upon ap
public officer, trustee or replication for substitution,
ceiver. after plaintiff's death.
1135. Affidavit to move to continue 1124. Order reviving and continuing
action against receiver in one of two causes of action
place of corporation. which have been joined, only 1136. Order granting leave to proceed one of which survives.
against receiver of dissolved
corporation 59 Hasbrouck 1. Bunce, 62 N. Y. 475 (death of one of several tenants in common, plaintiffs in ejectment). S. P., N. Y. Code Civ. Pro., 8 759.
60 See paragraph 6, supra; Draper v. Platt, 43 Misc. 406, 89 N. Y. Supp. 356, and cases cited.
FORM No. 1112.
Affidavit to move to strike out a defendant who has died, leaving neither
representative nor assets subject to the jurisdiction.61 [As in Form 1116 to the *] II. That this action was brought in 19
to compel the defendants above named to make contribution for losses sustained [or, money paid] by the plaintiff on behalf of himself jointly with defendants in [stating ground briefly), as appears by the complaint herein on file [or, a copy of which is annexed]. That the summons was served on the defendant Y. Z. on the
19 (and state condition of the cause as to him]. That at the commencement of this action as a foresaid the defendant W. X. was and thereafter continued to be a resident of
in the State of until his death, which occurred at
last. That said W. X. was never during this action a resident of this State, nor to the knowledge of deponent within this State. That there were not at the time of his death, nor have there since been, nor are there now, any assets or property of said W. X., or of his estate, within this State, and that for want of any jurisdiction, power or authority in any surrogate or other officer within this State in respect thereto, the plaintiffs are unable to procure the appointment within this State of any personal representative of said W. X.
III. [Conclude as in Form 1116.]
FORM No. 1113. Affidavit to move to strike out and substitute parties after new trial ordered,
and for leave to serve supplemental complaint, or for leave to amend. 62 [Title of court and action.] [Venue.]
R. P. G. being duly sworn, says:
I. That he is one of the plaintiffs in this action (or as in Form 1116.]
II. That the action was brought for the purpose of rescinding a contract alleged by the plaintiffs to have been fraudulent, and
61 Adapted from the precedent in Angell r. Lawton, 14 Hun, 70; appeal dismissed in 76 N. Y. 540, without deciding that such an order was necsary. Compare Mosgrove v. Kountz, 14 Fed. Rep. 315; Hays 1. Thomas, 56 N. Y. 521. The better opinion is that the court would have power to
strike out the name on the trial. In Angell 1. Lawton, plaintiff by the same order had leave to bring in the representatives of another deceased defendant, which is not noticed in the report.
62 Sustained by the Supreme Court in Getty v. Spaulding, 2 Supm. Ct.