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Piering v. Henkel

2 N.Y.S. 413 Court N.Y. City Ct. Decision date 1888-10-27 English

Delivered by McAdam, C. J.

Contents

Majority

p. 413
Piering v. Henkel.
(City Court of New York, Special Term.
October 27, 1888.)

Headnote

Practice in Civil Cases—Dismissal after Death of Party —Attorney and Client—Authority.
An order and judgment dismissing an action for want of prosecution, after the death of the sole defendant, are erroneous; and, the attorney’s authority having been revoked by his client’s death, his interest in the costs will not sustain the dismissal.
On motion to vacate judgment.
John McMahon, for motion. A. C. Schatz, opposed.

On May 10,1888, an order was taken by default, dismissing the action for want of prosecution, and judgment was entered in favor of the defendant, and against the plaintiff, May 11,1888, for $72.40 costs. The plaintiff moves to vacate the judgment upon the ground that-the defendant was dead at the time the order for dismissal was made. The defendant’s attorney admits that his client was dead at the time of the dismissal, but claims that his practice was legal, because he was interested in the costs. There is no force in this claim. The death of the defendant revoked the appointment of the attorney; and he has no authority, without a new retainer, to appear in the suit for the legal representatives of the deceased. Weeks, Attys. §§ 192, 256. The death of the defendant suspended all proceedings in the action, except to revive it in the name of the legal representatives of the defendant; and it has never been revived. Jarvis v. Felch, 14 Abb. Pr. 46 ; Reed v. Butler, 11 Abb. Pr. 128 ; Adams v. Nellis, 59 How. Pr. 385 . A verdict, report, or decision, made or given against a party who dies before the rendition thereof, is void, (Code, § 765;) and this provision applies to proceedings in an action on the death of a sole plaintiff or defendant, (1 Wait, Pr. 152.) It follows that the motion to vacate the judgment must be granted, but- without costs.

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