Read o. Simon. think the learned justice at special term has easily surmounted the difficulty presented by these several sec other action, and the provisions of §§ 755-761, ante, appear to be applicable without it. They cover every case, except where, upon the death of a party, different persons succeed to different distinct portions of the property sought to be recovered, or where one person succeeds to the rights or liability of the deceased party in the real property, and another to his rights or liability in the rents and profits. These cases are provided for in the next two sections. Hasbrouck v. Bunce (62 N. Y. 475)." Sections 1522 and 1523 read as follows: See § 1522. "Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or interest of the decedent to or in each distinct parcel be substituted as plaintiff or defendant, as the case requires, in the action relating thereto." § 1523. "Where the plaintiff seeks to recover damages for withholding the property, and upon the death of a party different persons succeed to the decedent's right to or liability for those damages, and to his title to or interest in the property, the court may upon motion, made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereon accruing after the decedent's death; the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires." Mr. Throop, in his notes to these sections, says that they are intended to supply a causus omissus in the original statute as explained in the note to section 1521. He also says in his note to § 1523: "The original statute makes no provision for the continuance of action, so far as it related to the damages or the rents and profits, where the decedent claimed in fee; and as, in that case, the successor to his interest is not entitled to, or liable for, such damages or rents and profits, it is presumed that the cause of action, so far as it relates thereto, abates. Provision was made in the Revised Statutes for the suggestion of a claim for mesne profits, by the Read v. Simon. tions of the Code, by inserting a provision in the order, allowing the plaintiff to amend, or make a supplemental complaint, if he sees fit to do so, as a part of the order of severance. In this way alone, perhaps, the parties may safely proceed to a trial of the case. Therefore it follows that the order appealed from should be affirmed. Order appealed from affirmed, with $10 costs and disbursements, but with leave to the plaintiff to serve a supplemental complaint within 30 days, on payment of the costs. DWIGHT, P.J., concurred. personal representatives of a plaintiff dying after issue joined (2 R. S. 311, part 3, ch. 5, tit. 1, § 54 (3 R. S., 5th Ed., 598; 2 Edm. 320)." Doherty v. Matsell (9 N. Y. Civ. Pro. 103) seems to be the only case decided under these provisions since the enactment of the present Code of Civil Procedure. In that action the grantees of lands held adversely to his grantors at the time of the conveyance to him brought an action to recover said lands in the names of his grantors, and two of them died pending the action, and the defendant moved at the trial to dismiss the complaint on the ground that it had not been revived in the name of the executors of such deceased plaintiffs, which motion was denied and an exception taken, and the court at the close of the case directed a verdict for the defendant and ordered the exceptions of the plaintiff to be heard in the first instance at general term,-Held, that an order granted after such trial, reviving and continuing the action in the name of the executors of the deceased plaintiffs, and permitting the plaintiffs to amend the proceeding and "to amend and supplement their complaint showing the death of said plaintiffs and the qualifications of their legal representatives so as to conform to the proofs taken on the trial nunc pro tunc" as of the day before the trial, was improperly granted; that the remedy for the defect was not to be found in sections 755 to 761 of the Code of Civil Procedure, which provide for reviving and continuing actions in certain cases, but was analogous to that which may be applied after an answer of a defect of parties, viz., to amend the complaint and proceed de novo, and that it would not be correct to allow such an amendment nunc pro tunc. Marks v. La Société Anonyme de l'Union des Papeteries. MARKS et al., APPELLANTS, v. LA SOCIÉTÉ ANONYME DE L'UNION DES PAPETERIES, RESPONDENT. NEW YORK COURT OF COMMON PLEAS, GENERAL TERM; JUNE, 1892. § 432. Service of summons—when party coming within the state to testify as witness not exempt from. Witnesses are entitled to immunity from the service of civil process for the commencement of actions while attending our courts for the purpose of testifying either on the trial of the action in the court or de bene esse before a referee or notary, and this exemption extends not only to witnesses, but also to parties to the action, and applies where the witness is a director of a foreign corporation, and the action in which he is sought to be served is one against said corporation. Where one coming into this state from a foreign country for the purpose of testifying on the trial of an action, found upon his arrival that the action had already been tried, and then instead of securing the prompt taking of his testimony de bene esse, entered into negotiations extending over nearly a month, which ended in the making of a stipulation under which his deposition was taken, and then after the taking of his deposition remained within the state for about one week to attend to his private business,-Held, that service of a summons made upon a foreign corporation of which he was the president, by delivering the same to him three weeks after he arrived in this state, and before the making of the stipulation under which his deposition de bene esse was taken, should not be set aside on the ground that he was within the state for the purpose of testifying as a witness; that he lost his right to exemption from service of process by remaining in the state an unreasonable and unnecessary length of time. (PRIOR, J., concurring in result,-Held, Marks v. La Société Anonyme de l'Union des Papeteries. that the rule exempting a person coming here to testify as a witness from service of process did not apply where the service was made upon said person not as an individual, but upon a foreign corporation of which he was an officer, by delivering it to him.) Sheehan v. Bradford, Bordell & Kinzua R. R. Co. (15 N. Y. Civ. Pro. 429) followed by BOOKSTAVER, J., and not followed by PRIOR, J. (Decided June 6, 1892.) Appeal by the plaintiffs from an order of the special term setting aside the service of a summons made upon the defendant in this action by delivering it to its president. The facts are stated in the opinion. David Tim, for plaintiffs, appellants. Coudert Bros., for defendants, respondents. BOOKSTAVER, J.-Witnesses are entitled to immunity from the service of civil process for the commencement of actions, while attending our courts for the purpose of testifying, and this immunity does not depend on statutory provision, but is deemed necessary for the due administration of justice, and extends not only to witnesses, but also to the parties to the action (Matthews v. Tufts, 87 N. Y. 570). It also applies where the witness is a director of a foreign corporation, and is served with the summons in an action against such corporation (Sheehan v. Bradford, Bordell & Kinzua R. R. Co., 15 N. Y. Civ. Pro. 429); and it makes no difference whether the testimony is taken on the trial of the action in a court, or de bene esse before a referee or notary (Hollender v. Hall, 18 N. Y. Civ. Pro. 394; affd. 19 Id. 293). The only question to be determined, therefore, on this appeal, is whether Engelbert de Limburg-Stirum, who was a director and president of the defendant society, was act Marks v. La Société Anonyme de l'Union des Papeteries. ually in this country as a witness at the time of the service of the summons upon him, and for no other purpose; for if he were voluntarily within the state upon private business other than attending trial as a party to a litigation, or appearing as a witness in the courts of this state in other judicial proceedings, he could not claim exemption (Sander v. Harris, 20 N. Y. Civ. Pro. 258). It appears that two actions were commenced in the supreme court by the defendant herein against the plaintiffs, one an action in replevin and the other for an accounting. The replevin action had been reached upon the calendar before the 16th January, 1892, and was set down for a day certain. The accounting action had not then appeared upon the day calendar, and no trial of it was imminent. On the day last named the defendant's attorney sent a cable message to Brussels, requesting Limburg-Stirum to come to America as soon as possible, with letters, etc. Presumably this cable was for the purpose of having him here as a witness in the first action. In obedience thereto, he left Brussels on the 26th January, but did not arrive here until the 6th February. On his arrival he was informed that the replevin action had been tried, and a verdict rendered in favor of the defendants therein and against his company; consequently he was no longer needed as a witness on that trial; and the taking of his testimony de bene esse, after verdict, was merely precautionary, in view of a possible new trial of that action, or in order to have the deposition for use in the action for accounting. Consequently, under such circumstances, it was his duty to have such examination taken with as little delay as possible, and for this purpose he could at once have applied to the court for an order for his examination, which would have been made returnable within a few days; but from the papers it appears that, instead of doing this, negotiations were entered into between the counsel for the respective parties looking to such examination de |