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mental complaint annexed hereto; and deponent believes, that unless enjoined and restrained, the said defendant and said W. X.: will act upon said contract, to the great injury of the plaintiff as in said supplemental complaint set forth. That it will be necessary to issue a supplemental summons herein against said W. X., or to amend the summons in this action, by adding the name of the said W. X. as a defendant therein, and to make and serve a supplemental complaint substantially like that hereto annexed.
III. [See Par. III, Form 1116.]
FORM No. 1121. Order, by consent, substituting executors of deceased plaintiff without preju
dice to proceedings already had.
At a Special Term [etc., as in
Form No. 820, p. 1174]. [Title of action.]
On reading and filing the affidavit of A. T., verified the day of
, 19, showing the death of A. B., the plaintiff in the above-entitled action, and the granting of letters testamentary under and by virtue of his last will and testament [or, of letters of administration on his estate], to C. D. and E. F., by the surrogate of county, and on motion of A. T., attorney for *, the attorney for consenting thereto:
ORDERED, that this action be and the same is hereby continued in the name of the said C. D. and E. F., as (executors of the last will and testament] of A. B., deceased, as plaintiffs; and that the said executors be and they hereby are substituted as plaintiffs in the place and stead of the said A. B., deceased, and that such substitution and continuance be without prejudice to any of the proceedings already had in this action.
Enter: [signature of judge by initials of name and title.]
he said C. D. areceased, as plaintif sans plaintiffs in
FORM No. 1122.
Consent to entry of order. (To be underwritten.]
We hereby consent to the entry of the foregoing order and the substitution therein made. [Date.]
FORM No. 1123. Affidavit of assignee upon application for substitution, after death of
T. B., being duly sworn, says: That the above-entitled action was brought by A. B., plaintiff above named [state character of action, showing it to be assignable.]
That heretofore, and on or about the day of 19 , by an instrument in writing, the said plaintiff duly sold, assigned and transferred to deponent all his right, title and interest in and to said cause of action herein, and all moneys due and to become due him thereunder. 69 That subsequently thereto, and on or about the day of
, 19 , said plaintiff died [intestate, leaving him surviving F. B. and C. B., his only heirs at law and next of kin, and that no letters of administration upon his estate have been granted or applied for.]
Deponent further says that he is the absolute owner of the cause of action herein, and that no other person or persons has or have any interest therein.
FORM No. 1124. Order reviving and continuing one of two causes of action which have been
joined, only one of which survives.70 [After appropriate recitals:]
ORDERED and adjudged that the [first] cause of action alleged in the complaint has not survived the death of the [defendant] and is not continued; that the [second] cause of action be and the same is hereby continued by and in the name of C. B., as executor of the last will and testament of A. B., deceased [continue as in Form 1129.]
[Or, if the two causes were commingled:]
ORDERED, that so much of the causes of action set forth in the complaint herein as relates to and is based upon damages to the property of said A. B. is continued [etc. A direction for the service of an amended complaint may be desirable.]
This order is granted upon condition that [said executor] stipulates to strike from the complaint the cause of action relating to and based upon damages to the person of said A. B.]
68 Form is from Bennett v. Thompson, 76 Hun, 125, 27 N. Y. Supp. 565, where the court held that notice to the representatives or next of kin of the deceased plaintiff was not necessary.
69 An assignment to the moving
party from the deceased's representa. tive, although of foreign appointment, gives the assignee the right of continuance and substitution. McNulta v. Huntington, 62 App. Div. 257, 70 N. Y. Supp. 897.
70 Probably limited to two causes
FORM No. 1125. Affidavit to move to substitute executor or administrator of deceased defend.
ant (short Form).71 [As in Form 1116, to the *] II. That this action [here state its nature and condition, as thus:] was commenced by the service of the summons and complaint upon the above-named defendant, on or about the day of , 19 , to recover damages for the breach of a contract [indicating its nature; see Forms 1116 and 1120) theretofore, and on or about the day of 19 , made by said defendant with this deponent.
III. That on or about the day of , 19 , issue was joined herein by the service of an (amended] answer; and thereafter, and on or about the day of cause was duly noticed for trial by this plaintiff, and duly placed upon the calendar of this court [in the county of , where the same is triable], and is still pending, and that the next term at which it could be tried is appointed to be held on the day of next [or, if trial but no decision or report had, state as in Form 1118].
IV. That thereafter, and on or about the day of 19 , [and if trial has been had, add: and before verdict -- or, report — or, decision actually rendered"?] as deponent is informed and believes, said defendant, being then the sole defendant herein, died, leaving a will, by which he appointed W. X., who resides at
, his executor. That said will was admitted to probate on or about the day of
last, by the surrogate of the county of , and that letters testamentary thereon have
day of ended] 'anes, issue
by this plane
of action springing from the same negligent or tortious act, which results in injury both to person and property. Reilly o. Sicilian Asphalt Paving Co., 170 N. Y. 40.
The order is drawn upon the suggestions in Forster V. Cantoni, 19 App. Div. 306, 46 N, Y. Supp. 118, 4 Anno. Cas. 375.
his personal representatives, should be brought in.
If the substitution desired is of a public officer as successor of one originally a co-defendant, follow Form 1132.
For suggestion of death, where the entire cause of action continues against the survivors only, see Vol. I, p. 446, and N. Y. Code Civ. Pro., 8 758.
71 N. Y. Code Civ. Pro., 88 757, 758. Appropriate also in case of the death of a sole surviving defendant. Coit 1. Campbell, 82 N. Y. 509.
Or of a surviving partner sued as such. Carrere 1. Spofford, 15 Abb. Pr. (N. S.) 47, 46 How. Pr. 294.
But if he was defendant as executor, administrator, assignee for benefit of creditors, trustee, commit. tee of lunatic, etc., his successor, not
72 If the death was not before such determination, judgment will be entered in the name of the original defendant (N. Y. Code Civ. Pro., 88 763, 765), with a suggestion of the death. Id., $ 1210; Long v. Stafford, 103 N. Y. 274. And such suggestion can even be supplied after judgment nunc pro tunc. Id.
been issued to the said executor by the said surrogate, and he has undertaken the execution thereof and now is such executor (or, died intestate, and that letters of administration upon his estate were, on or about the day of last, duly issued by the surrogate of
county to W. X., who resides at and that he has undertaken the administration thereof and now is such administrator].
V. [etc.; see III, Form 1116.] 73
[If laches in making the application appear, state facts excusing.]"
FORM No. 1126. Order that executors or administrators of deceased defendant show cause why
action should not continue against them. [Title of court and action.] l'pon the annexed affidavit of A. B., verified on the
day of , 19, and on the pleadings [here may specify any proceedings relied on), let M. N. and O. P., the executors of the last will and testament [or, the administrators of the goods, chattels and credits] of Y. Z., deceased, show cause before one of the justices of this court, at a Special Term [Part I] thereof, to be held in the City Hall [or, County Court House), in the city of
, county of , on the day of , 19 , at
o'clock in the noon of that day, or as soon thereafter as counsel can be heard, why an order should not be granted herein, directing the above-entitled action to be continued against them, the said M. N. and O. P., as the executors (or, as administrators] as aforesaid, in the place of said deceased defendant, without prejudice to the proceedings already had, (and amending the title of this action accordingly — and granting leave to this plaintiff to amend the complaint — or, to file and serve a supplemental complaint — herein, as he shall be advised],75 and why such further or other relief should not be granted as may be just.
73 If the deceased defendant was one of two or more joint debtors, the affidavit must show insolvency of the survivors, or other ground for order ing the substitution of the representa tires. See First Nat. Bank v. Lenk, 10 X. Y. Supp. 261; aff's, 123 N. Y. 638: Potts v. Dounce, 173 N. Y. 335.
74 See paragraph 6, pp. 1436, 1437, supra. The court will consider only the delay of the representative in se
curing appointment, or in making the application, for a deceased plaintiff, or the plaintiff's delay in making the application for a revivor against the representa uives of a deceased defendant. Prior delay in the cause is irrelevant. See Markell 1. Nester, 29 App. Div. 55, 51 N. Y. Supp. 852.
75 There is usually no necessity for an amendment of summons or pleadings. See paragraph 6, p. 1436, supra,
Service of this order shall be sufficient if made upon said M. N. and O. P. [or, upon either said M. N. or said O. P.) personally [or, if such service be not practicable, by leaving the same at their residence, and by service on the attorney for the deceased defendant Y. 2.- and, if shorter time than eight days is asked, " add on or before the day of
FORM No. 1127. Order continuing action by or against personal representatives of a sole party,
deceased. 77 [Caption — court order — and recitals according to case; see Form 820, p. 1174.]
ORDERED, that this action be and the same is hereby continued by and in the name of (or against and in the name of] C. B., as (sole executor of the last will and testament of A. B., deceased]78 and that the summons and pleadings be amended so as to make said [executor] the party (plaintiff] in this action, without prejudice to the proceedings already had herein.
[Add conditions, if any, imposed.]
[If any reasons exist for serving supplemental complaint, it may be ordered; otherwise the pleadings will stand as before.80 If ordered as against a representative of a deceased defendant, continue: ] That plaintiff have leave to file and serve a supplemental complaint herein, alleging such of the matters stated in said affidavits and such other matters as he may be advised, and that a supplemental summons issue herein directed to the said such [executor], requiring him to answer the original and such supplemental complaint.
FORM No. 1128. Order continuing action against surviving defendants on the death of one;
or directing severance.81 [Caption (court order) and recitals according to the case; see
Form 820, p. 1174.]
ORDERED, that the said action be, and the same is hereby continued against such surviving defendants, without prejudice to
76 In which case have the affidavit state the facts required by court rule. See Form 816, p. 1172, of this volume.
77 See paragraph 6, p. 1436, supra.
78 Care should be taken to join the person in his representative capacity.
See First Nat. Bank v. Shuler, 153
79 See Knoch v. Funke, 28 Abb. N. C. 240; McInnis v. Gardiner, 26 Misc. 487, 57 N. Y. Supp. 471.
80 See paragraph 6, p. 1436, supra, 81 See paragraph 5, p. 1435, supra.