Majority
p. 60Nicoll and others against E. Roosevelt and others. October 14.
Headnote
Where one of several defendants dies, the plaintiff cannot file a neto original bill against the representatives of the deceased party and the others, but a bill of revivor only against such representatives.Even if he might elect to file a new bill, he cannot do so where an answer has' been put in by the party, since deceased.
BILL for a discovery against the executors of Cornelius C. Roosevelt and Peter R. Ludlow and wife, for an account of moneys arising from the sale of parts of the' real and personal estate of Samuel Nicoll, deceased, which had come into the hands of C. C. R., and for the payment of the amount, &c.
Plea, that the plaintiffs in the life time of C. C. Roosevelt,, to wit, on the 4th of April, 1812, exhibited their bill against him, and P. R. Ludlow and his wife; to have an account of the same matters as are set forth in the present bill, and for general relief. That C. C. Roosevelt, put" in his separate answer to that bill on the 27th of August, 1812, which was not excepted to;and afterwards, died, having made his will, and appointing the defendants his executors. That the said suit is still pending in this court, except so far as it may have abated by the death of C. C., R,oosevelt ;■ and that the plaintiffs ought to revive it, as against the de-fendants, his personal representatives, so far as related to any right or claim of the plaintiffs against him at the time of his death, whereby the answer of the said C. C. Roosevelt, would form part of the record, and the defendants have-the benefit thereof, in their defence, as his personal representatives; whereas the present is a new original bill-of the plaintiffs, which takes no notice of the former bill and answer, &c. but seeks a discovery and account from these defendants, as executors, as though the former bill had not.
p. 61He cited 1 Vern. 308. 463. 3 Atk. 486.
been filed, nor the answer of the said C. C. Roosevelt put in thereto. And the defendants insisting on their plea in bar, prayed judgment, &c.
J. Emott, for the plaintiffs.
G. Griffin, for the defendants.
The plea ought to be allowed; for instead of an original bill, there ought in this case to have been a bill of revivor against the representatives of Roosevelt, who had already filed his answer, of the benefit of which they ought not to be deprived. The statute (1 N. R. L. 488.) does not require or permit the suit to be abated iff case of the death of onet of the defendants. Perhaps the plaintiff may, in certain cases, be entitled to elect between a new bill and a bill of revivor, according to the dictum in the cases referred to, but it would not be reasonable in this case, after the defendants had answered.
Leave to amend the bill, on payment of costs.