Carow v. Mowatt — 1 Edw. Ch. 9

Majority

p. 9

Carow, Executor, &c. of Mowatt, deceased, vs. Mowatt, Administratrix, &c. of Mowatt, and others.

Headnote

A new defendant cannot be added to a stilt Upon a petition: it must be' by a supplemental bill.

An administratrix, who has been superseded, Will not be allowed to withdraw from a suit in which she is a defendant.

May 16. 1831.

This was an application, by a petition, on the part of the public administrator, Silvam~s Miller. The petition shewed, that the defendant, Martha Mowatt, had been superseded by the Surrogate of the city and county of New York, as adminis~ tratrix of John E. Mowatt, and that Mr. Mi11~r had been appointed, by the same Surrogate, iii her p1ace.~ It specified an amount of funds which were in the hands of the said Martha Mowatt, as administratrix; suggested that the same should be paid to Silvanus Miller; and prayed, that he might be substituted in her place as a defendant in the above suitS

Mr. Silvanus Miller, appeared in support of his petition.

Mr. Charles G. Troup, for the defendant,

Martha Mowatt,

p. 10

suggested the willingness of his client to part with ihe funds ii$ her hands, provided she could do it with safety; and her desire to be dismissed from her situation as a defendant.

Mr. John Anthon, for the complainant, opposed the prayer of the petition:

because Martha Mowatt was now liable for her acts as an administratrix; and, one party could not be thus substituted for another—the first being made a party by the complainant and no relief being prayed for against the proposed new party.

think this motion has been r*o'htly opposed by the complainant. Martha Mowatt ought n°t to be released from any liability she may have incurred as. the administratrix of her late husband; and the complainant is en^í¡e¿ to call her to an account. I have looked into some authorities to see how far the court can substitute one defendant for another in the summary way required by this-petition. The case of Foster v. Deacon, 6 Madd. C. R. 58,* is an authority directly in point. The petitioner in that case was the assignee* for a valuable consideration, of the unascertained interest of the defendant, Deacon, and of his wife; and he prayed to be admitted to take part in the suit as a party defendant. The court permitted the pettiioner to make himself a party by a supplemental bill.

In the case before the court, it appears, that the letters <¿f administration which wore granted to Martha Mowatt, have been revoked; and that Mr. Miller, the petitioner, has now the right in himself. His course, therefore, is by á supplemental bill; but I think that the complainant should have the preference of filing such a bill. I shall, therefore, order, that the complainant have leave to do so, and thereby make Mr. Miller a party defendant *, but if the complainant shall not file such bill within twenty days* then the petitioner may file it, praying to be admitted a party defendant to the suit. After this is done, some order can be made as to the assets in Martha Mowatt’s hands: for the purpose of having them brought into court or transferred to the public administrator. But I shall make no order in this respect^ until the supplemental bill is filed.