Mackey v. Duryea — 22 Abb. N. Cas. 284

Majority

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MACKEY v. DURYEA.

N. Y. Supreme Court, First District, Special Term;

January, 1889.

Headnote

Abatement and revivad] Where, upon the death of one or more of several defendants, the cause of action does not survive against the other defendants, but does against the representatives of the deceased, the proper remedy is to bring them in by supplemental summons and complaint; it cannot be done by motion, for the statute (Code Civ. Pro. §§ 757-760) does not provide for such a case.

Motion to strike cause from the calendar and for a postponement of the trial until proper parties were brought in the action.

The action was originally brought by a beneficiary under a will against executors for an accounting, and interlocutory judgment was had which directed an accounting. ■Subsequently a rehearing was ordered, which involved not ■only the accounting but perhaps also some matters covered by the interlocutory judgment.

The original plaintiff meanwhile married and subse

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qacntly died, and her executor was Mr. Mackey. The executors against whom the action was brought both died,, and an executrix for'one of them qualified.

The executor of the original plaintiff procured an order that the action be continued in his name, as plaintiff, and' in the name of the executrix of the first mentioned accounting executor and in the name of the representative of the-other when one should be appointed. Also, in a special proceeding for that purpose he had the United States Trust. Company appointed trustee of the estate in place of both, deceased executors, and the funds deposited with it.

The cause being reached for rehearing in this condition,.

Sherman Evarts, for one of the beneficiaries defendant,

objected that the cause could not properly proceed until the personal representatives of the deceased parties defendants, and the trustee substituted in the place of the original trustees were properly brought in and made defendants.

Joshua M. Van Oott, for the plaintiff.

I see no way of avoiding the necessity for a supplemental summons and complaint against the representative of H. B. Duryea. Section 757 of the Code applies only to the case of the death of the sole plaintiff or sole defendant (Coit v. Campbell, 82 N. Y. 509 ), and I find no other provision for the bringing in of representatives of deceased defendants, generally, on motion. Sections 758 and 759 only apply to cases where the entire cause of action or part of the cause of action survives against the survivor of two or more defendants. Section 760 only applies to a case specified in these preceding sections. Here the cause-of action has not survived against the other defendants in whole or in part, and it was necessary, notwithstanding these sections, to bring in H.

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.to a supplemental summons and complaint. The trust company should also be made a party. It was appointed trustee generally under the order of the court, and not of a particular fund. The cause must stand over for these purposes. 'This is the first time that the subject has received my delibérate consideration, and I confess that the ruling made at •the call of the special term calendar was hasty. It is better for the plaintiff, too, in view of the complex nature of this éause and the great delay which has taken place, to move -carefully, and to avoid all doubtful procedure.

Cases cited

Coit v. Campbell 82 N. Y. 509 N.Y. 1880-11-16 p. 285