the proceedings heretofore had therein [and that the cause proceed on days notice, after service of this order or, and that the cause may be set down for trial at the trial term commencing the next]. day of [Or, if severance is directed, that the action be severed; and that it proceed [if as to part only say, as to the claim for stating what] against Y. Z., the surviving defendant alone; and that it proceed [if as to part only, state what] against said J. X., as executor of W. X., as a separate action with like effect as to all subsequent proceedings, as if separate actions had been originally and seasonably brought against them respectively.] Enter: [signature of judge by initials of name and title.] FORM No. 1129. Order granting leave to continue action against successors in interest of a defendant. [Title of action as originally.] At a Special Term [etc., as in 19 Upon reading and filing the notice of motion [or, order to show cause] on behalf of the plaintiff herein, dated and the affidavit of A. B. verified on the same day [and the proposed supplemental complaint of A. B., each] annexed thereto, and proof of due service of such notice and copies of all said papers upon M. N., the sole devisee etc., according to the fact of Y. Z., deceased, and upon the attorneys for the respective defendants U. V. and W. X. herein, and after hearing A. T., of counsel for the plaintiff, and Z. T., of counsel for the defendants U. V. and W. X., and said M. N. as executor [or, and no one appearing] in opposition, and due deliberation being had; now, on motion of A. T., attorney for plaintiff : ORDERED, that said action be and the same is hereby continued in the name of the plaintiff herein against and in the name of the said M. N. [and said U. V. and W. X.] and that the summons and pleadings in this action be and hereby are amended so as to make said M. N. a party defendant in this action as above provided, without prejudice to any proceedings heretofore had in the said action. [The order in case of necessity for substituted service may provide: That the plaintiff be allowed to serve a supplemental summons and complaint herein as he shall be advised, and that the service of said supplemental summons and complaint be without prejudice to any of the proceedings already had herein, and upon service thereof, this action shall proceed with like effect as if said M. N. had been originally named as a party thereto.]82 [Or leave to alter issue may be given, thus: And the said M. N. is hereby allowed to file and serve a supplemental answer to the complaint in this action within twenty days after service of said supplemental summons and complaint; otherwise the answer of said Y. Z. may stand as the answer in the cause on that behalf.] Enter: [signature of judge by initials of name and title.] FORM No. 1130. Order for leave to serve a supplemental complaint, bringing in as an additional defendant a third person who has assumed defendant's obligation.83 At a Special Term [etc., as in Form 820, p. 1174 of this volumes]. [Title of action as originally.] On reading and filing the affidavit of A. B., verified the day of 19 [and thus enumerate all the motion papers, see previous Form]; and after hearing A. T., of counsel for the said plaintiff, in support of the motion, and Z. T., of counsel for the defendant Y. Z.,85 in opposition thereto; now, on motion of A. T., attorney for plaintiff: 82 See paragraph 5, p. 1435, supra. 83 Sustained in Prouty v. Lake Shore, etc., Ry. Co., 85 N. Y. 272, the third party here having assumed the liability of the defendant by a contract made pending the action. Compare previous decision in 52 id. 363, where it was held that a motion to substitute, after trial, new defendants, on the ground of an assumption by them of the liability established on the trial, and without prejudice to the proceedings, is not the remedy, but they should be made parties to a new action or at least a fresh trial. A verbal order of the court upon the trial, without any actual amendment of the pleadings, or any allegation in the pleadings relating to the new parties, or any appearance on the record for them, or issue joined as to them. Held, notwithstanding the presence of the parties in court, not to make them parties to the record. Hood v. Hood, 85 N. Y. 561; Lehrer v. Walcoff, 47 Misc. 112, 93 N. Y. Supp. 540. 84 Under N. Y. Code Pro., § 122, a referee was held to be without power to order a new party to be brought in by compulsory process. Newman v. Marvin, 12 Hun, 236. Compare, for present statute, N. Y. Code Civ. Pro., § 1018. The better practice, in case of reference, is to move in court, and take an adjournment of the reference, meanwhile, if necessary. 85 Notice of application for leave to file supplemental summons and complaint need not be given to the party sought to be brought in. So held where, after a decree in foreclosure, and a sale thereunder, plaintiff, on discovering that a person liable to pay the mortgage debt had not been made a defendant, applied at a Special Term for leave to bring in and to file a supplemental summons and complaint. Ebbets v. Martine, 19 Hun, 294. ORDERED, that said plaintiff have leave [within days after entry of this orders] to issue and serve a supplemental summons, and to serve and file a supplemental complaint in this action against W. X., bringing him in as a party defendant in the action, with such allegations as the said plaintiff may be advised [or may specify nature or scope of the amendment], and serve the same on the said W. X.;87 and that the said W. X. be permitted to answer or demur to the complaint and supplemental complaint within twenty days after the service thereof, as he may be advised [the answer of the defendant Y. Z. to stand as his answer herein all questions of costs to be reserved until the determination of the issues to be joined on such supplemental complaint and other pleadings]. [It is further ordered, and as a condition of this order, and as a condition precedent to the plaintiff having or deriving any relief under or pursuant to this order, that the said plaintiff here state conditions.] Enter: [signature of judge by initials of name and official title.] FORM No. 1131. Affidavit of attachment issued, and death of defendant before publication of summons completed.88 [Commencement as in other cases, and stating the nature of the cause of action.] day of II. That on the 19 he commenced proceedings for the purpose of bringing this action thereon against the defendant Y. Z. by publication of the summons herein against him, pursuant to the provisions of the statute, the said defendant being a non-resident of the State of New York, and residing in the town of in the State of ; which publication comday of last. menced on the III. That deponent procured an attachment to be duly issued in his favor, in said action, against the property of said Y. Z.; upon which, during the lifetime of the said Y. Z., and on or before the last, the sheriff of the day of 86 When the court has fixed the time within which leave is given to file a supplemental complaint to continue an action, or within which the plaintiff must file such a complaint or submit to a dismissal, it has no longer power to enlarge it. N. Y. Code Civ. Pro., § 785. 87 See Vol. I, p. 719. 88 Whether the action can be continued in such case under the present statute, see Barron v. South Brooklyn Saw Mill Co., 18 Abb. N. C. 352, and cases cited. county of seized a large quantity of goods, the property dollars; that after the said goods were so seized by the said sheriff, and before the said publication was completed, the said Y. Z. died, on or about the day of of the said Y. Z., of the value of 19 [Allege appointment of executor, or administrator; see Form and conclude as in other cases.] 1125 FORM No. 1132. Affidavit to move for substitution of public officer's successor.80 [Title of court and cause.90 [Venue.] last, C. D., of to the office of of A. T., being duly sworn, says that he is the attorney91 of the plaintiff [or, defendant] in this cause; that on the day of was duly elected [or, appointed] of the [town of in the] county in place of the plaintiff [or, defendant-naming him or them], who died at [or, whose term expired] on day of last the said C. D. qualified and has entered upon the duties of said office, and still holds the same. the 19 ; and that on the day of [Jurat.] FORM No. 1133. [Signature.] Notice of motion for substitution of public officer's successor. [Title of court and cause.] Please take notice, that on the pleadings herein and the affidavit [or, certificate], of which a copy is herewith served, the undersigned will move the court, at a Special Term thereof to be held at in the This remedy is statutory. 2 R. S. 447, § 100; revised in N. Y. Code Civ. Pro., 766, 1930. In the absence of statute the action may abate unless the officer is really the representative of the State or of a municipality, or quasi-municipality. See U. S. v. Boutwell, 17 Wall. 604; Thompson v. U. S., 103 U. S. 480, and cases cited; and see Barker v. Norton, 3 Hill, 474. The statute does not authorize an action on an individual or personal liability of the deceased or outgoing officer to be continued against his successor (Lament v. Haight, 44 How. Pr. 1); nor, according to Hitchman . Baxter, 5 Civ. Pro. Rep. 226, does it allow substitution against objection of a defendant who if successful would have execution for costs against the original party personally. Compare Pratt v. Seeley, 20 Wkly. Dig. 280. Under the New York statute the proceeding may continue in the original names, if no application for substitution is made. Manchester v. Herrington, 10 N. Y. 164; and see Griggs v. Griggs, 56 N. Y. 504. The statute is not mandatory on the court. Farnham v. Benedict, 29 Hun, 44. 90 This remedy is applicable to special proceedings. N. Y. Code Civ. Pro., 88 766, 1930. 91 If the successor applies, the affidavit should be by him. noon, or as soon thereafter as counsel can be heard, to substitute [name] as supervisor of the town of [or other official designation], in the place of Y. Z., as plaintiff [or, defendant] in this action; or for such other relief as may be just. [Date.] [Signature and office address of], Attorney of [moving party or successor]. 93 [Address], To [the successor; or if the motion is by him, to the FORM No. 1134. Order substituting successor of public officer, trustee or receiver.94 [Names of original parties.] At a Special Term [etc., as in On reading and filing the affidavit of A. T., verified the day of 19 [and mention any other papers], and proof of due notice of this motion [adding, if public officer's successor is made defendant and has not consented: fourteen days previous to the hearing], and after hearing A. T., of counsel for and Z. T. [or, no one appearing, for and torney for in opposition — or, consenting thereto]; now, on motion of A. T., at ORDERED, that : as [official designation], be and hereby is substituted as plaintiff [or, as defendant] herein in place of said deceased [or, whose term has expired or, who has been removed], without prejudice to the proceedings already had [or may give leave to plead, etc.; see preceding Forms]. 96 Enter: [signature of judge by initials of name and title.] 92 Where the action is against officers whose terms expire together e. g., the commissioners of highways of a town but one application ought to be made to substitute the successors of all. People v. Sage, 3 How. Pr. 56. 93 The notice should be served on the successor, where the motion is by the adverse party. If the successor is to be made defendant, give fourteen days' notice (Code Civ. Pro., § 1930), or get consent. 94 Applies only to a statutory receiver. Hegewisch v. Silver, 140 N. Y. 414. |