Latz v. Blumenthal

Herman B. Blumenthal and Solomon Blumenthal were copartners, and the cause of action is based on a co-partnership contract. Both were named as defendants .in the summons and complaint, but service of process was made on Herman B. Blumenthal only, who died without service having been made on the other defendant and before the action had.been brought to trial. Subséquent to the death of Herman, however, the other defendant voluntarily appeared in the action. In his answer he sets up a separate defense, to the effect that the action abated on the death of Herman B. Blumenthal. Assuming this to be so, it would seem that Solomon Blumenthal waived any such defense by voluntarily appearing in the action after the death of Herman B. Blumenthal. But be that as it may, the defense is insufficient in law upon the face thereof, and the demurrer thereto must be sustained. On the cause of action set forth in the complaint the two defendants were jointly liable as copartners, and the death of one of the defendants does not abate the action, which may proceed against the surviving defendant. Fine v. Righter, 3 Abb. Prac. (N. S.) 385. Under sections 1932-1935 of the Code, had Herman not died, plaintiff could have obtained judgment against both defendants, without serving Solomon with process, and issued execution against the copartnership property and the individual property of the partner served with process, although not against the individual property.of the partner not so served with process. Section 755 of the Code provides that “An action does not abate by any event, if the cause of action survives or continues.” There is no legal distinction between survivorship as between copartners and survivorship as between joint debtors. Potts v. Dounce, 173 N. Y. 340 , 66 N. E. 4 . The cause of action in question is based on a joint contract of both defendants, and there can be no question as to its surviving. It follows, therefore, from section 755 of the Code, that this “action does not abate by any event,” even the death of the only defendant served with process. Section 758 of the Code provides that, in case of the death of one of two or more defendants, if the entire cause of action survives against the others, the action may proceed against the survivors.

As we have seen, the defendant Solomon Blumenthal was one of the original defendants named in the summons and complaint, and the fact that Herman died before plaintiff had had an opportunity to have process served on Solomon does not abate this action on a joint liability, or prevent the plaintiff from proceeding against the surviving defendant upon his voluntary appearance in the action. At best there was merely a suspension in the prosecution of the action from the

Bemurrer sustained, with costs, with leave to defendant to amend answer.