Betts v. De Selding — 81 A.D. 161

Majority

p. 161

Carmi F. Betts, Respondent, v. Hermann De Selding and Joel S. De Selding, Appellants.

Headnote

Party — substitution of the administrator of the plaintiff after the plaintiff in his lifetime has assigned the cause of action—the real party in interest must have notice of a motion to make him a party.

Where one Betts brings an action upon a claim assigned to him by one Trimble and, during the pendency of the action, Betts reassigns the claim to Trimble, the court is authorized, under section 757 of the Code of Civil Procedure, in the event of the death of Betts while prosecuting the action for Trimble’s benefit, to allow the action to be continued in the name of Betts’ administrator. Semble, that the court might direct Trimble to be made a party to the action, but that such direction could only be given upon notice to Trimble.

Appeal by the defendants, Hermann De Selding and another, from an order of the Supreme Court, made at the New York Special Term, bearing date the 29th day of December, 1902, and entered in the office of the clerk of the county of New York, granting the motion of plaintiff’s administrator to revive this action.

E. F. Hills, for the appellants.

Sol. Kohn, for the respondent.

This action was brought to recover tlié sum of $5,000 for services rendered by one Trimble to the defendants, Trimble having assigned his claim to the plaintiff. The plaintiff died, whereupon this application was made to revive the action in favor of his administrator. The case comes within section 757 of the Code of Civil Procedure which provides that “ in case of the death of asolé plaintiff, * * * if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.”

p. 162

In opposition to this motion, however, the defendants allege that prior to his death the plaintiff had assigned the cause of action and right to recover to Trimble, in whose favor it had originally accrued, and who had assigned it to the plaintiff before the commencement of the action.

While it might be that, upon these facts, upon notice to Trimble and to the-plaintiff’s administrator, the court would have been justified in substituting Trimble for the plaintiff and continuing the action in his name, the continuance of the action in the name of the administrator of the plaintiff was expressly authorized by section 757 of the Code. The fact that the plaintiff had assigned the cause of action to Trimble after the commencement of the action, and that after such assignment the plaintiff continued the action for Trimble’s benefit^ would not prevent the action from being continued by plaintiff’s representative, or be a bar to the plaintiff’s right to recover. The plaintiff would then maintain the action as trustee for Trimble. The provision of the Code (§ 449) that an action must be brought by the real party in interest does not prevent an action being continued in the name of an assignor after an assignment of the cause of action for the benefit of an assignee. Section 756 of the Code provides that in case of a transfer of interest the action may be continued by the. original party, unless the court directs the person to whom the. . interest is transferred to be substituted in the action, or joined with the original party, as the case requires. The plaintiff, having been the owner of this claim when the action was brought, was entitled to prosecute it to judgment, and that right passed to his administrator upon his death. The court would not have been justified upon this, motion in substituting Trimble as the plaintiff in the action, as he was not before the court. The action should, therefore, be. continued in the name of the administrator of the plaintiff, unless the court directs Trimble to be made a party, and such direction can only be made where Trimble has notice of the application'.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.