Warren v. Eddy — 32 Barb. 664

Majority

p. 664

Warren vs. Eddy, impleaded, &c.

Headnote

An order for affirmance, by default, founded upon a notice of argument addressed to and served upon the attorney of a defendant, after the death of the latter, and after the attorney for the appellant has been notified of his death, is irregular.

If the personal representative of the deceased defendant is a non-resident, so that the -action cannot be revived in his name, the proper course of the plaintiff, if he desires to prosecute the appeal, after receiving notice of the death of the defendant, and that his administrator intends to abandon the appeal, is, to have an administrator appointed here, and then apply to have the action revived in the name of the latter.

Whether the general term, where a case has been made, on appeal, will get possession of'the appeal, so as to be able to affirm the judgment, before the case has been filed or served % Quiere.

p. 665

APPEAL from an order made at a special term, setting aside a judgment of affirmance.

Mr. Garvin, for the defendant and respondent.

E. P. Clark, for the plaintiff and appellant.

By the Court,

I think the order of the general term affirming the judgment, and the judgment of affirmance entered thereon, were made and entered irregularly, and that the order of the special term appealed from, setting aside the judgment of affirmance, should he affirmed.

The notice of argument for the February general term, 1860, was addressed to and served upon J. W. Culver, as the attorney' for the defendant Daniel F. Eddy, long after the death of the latter, and after the attorney for the appellant had been notified of his death.

At the time of the service of the notice, J. W. Culver could not act for a dead man, and he had no authority to act for or represent his estate.

The order of the general term for affirmance by default, founded on such notice, was therefore irregular, inasmuch as it was made without notice to any one representing the estate or interests of Daniel F. Eddy’s estate. His personal representative was a non-resident, and the action could not therefore have been revived in his name; hut the plaintiff, if he desired to prosecute the appeal, after he received notice of the death of Eddy, and that his foreign administrator intended to abandon the appeal, could have had an administrator appointed here, and then he could have applied to have the action revived in the name of such domestic administrator. I see no other way in which he could regularly obtain a judgment of affirmance, after the death of Eddy.

There is doubt, too, as the case was never served or filed, whether the general term ever got possession of the appeal, so as to affirm the judgment. The general term could of

p. 666

course dismiss the appeal for the non-service of the case, but whether they can affirm the judgment, where a case has been made, before the case has been either filed or served, is, to say the least, doubtful. (See Hunt v. Bloomer, 3 Kern. 341; Pope v. Dinsmore, 29 Barb. 367 .) But it is not necessary to decide that question in this case. I think the order of the special term should be affirmed, with $10 costs on the first point alone.

[New York General Term,

November 5, 1860.

Sutherland, Hogeboom and Bonney, Justices.]

Cases cited

Pope v. Dinsmore 29 Barb. 367 N.Y. Sup. Ct. 1859-05-02 p. 666