Appeal from special term, New York county.
Action by William E. Wamsley against H. L. Horton & Co., Limited. Prom a judgment overruling a demurrer to the answer, plaintiff appeals.
This action was begun January 9,1893, by the personal service of the summons and complaint, to recover damages for an alleged breach of contract. When the contract set out in the complaint was entered into, and when this action was begun, the defendant was a corporation organized and existing under the laws of the United Kingdom of Great Britain and Ireland, and engaged in business at the city of New York. The defendant appeared in the action and moved to set aside the service of the summons and complaint, which motion was denied. 68 Hun, 549 , 23 N. Y. Supp. 85 ; 70 Hun, 598 , 24 N. Y. Supp. 1142 ; 139 N. Y. 656 , 35 N. E. 208 . Subsequently the defendant demurred to the complaint, but its demurrer was overruled. 77 Hun, 317 , 28 N. Y. Supp. 423 . Thereafter the defendant answered, and later served an amended answer. November 21, 1894, a paper called a second amended answer was served, setting out four defenses,—the fourth being that the defendant was dissolved, at London, England, on or about May 23, 1893. This document, denominated the second amended answer, was verified November 20, 1894, by one of the firm of attorneys, who is the defendant’s attorney of record in the action. The plaintiff demurred to the fourth defense on the ground “that it is insufficient in law, upon the face thereof.”
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.Alexander S. Bacon, for appellant
John R. Dos Passes, for respondent
A sole defendant, who has died during the pend-ency of an action, cannot by Ms attorney plead his own death as a defense to the action. Nor can any defense be interposed by or in the name of a dead defendant. The fact that the defendant is a corporation does not alter the rule. In case a sole defendant dies, all subsequent proceedings taken by the plaintiff in the action, before the defendant’s representatives are brought in, are void. A judgment entered under such circumstances would be invalid. When it is shown that a sole defendant has died, it is usual to enter a suggestion of the fact on the record, which suspends all subsequent proceedings until the representative is brought in. It is very clear that a dead defendant cannot plead its death or any other fact as a defense. The authority of the attorney of record to act further in the case ceases upon the death of the client, and he can take no further steps in the action under his original retainer. We are unable to see on what principle any of the defenses interposed by this second amended answer can be demurred to. This answer ought not to have been received by the plaintiff’s attorney, and, if filed with the clerk of the court, it should have been stricken out. A notice of motion to strike out such an answer may be