Mayer v. Bruns

Headnote

Death op Dependant—Substituting Admin'istbatoh.

Code Civ. Proc. § 757, providing that, in ease of death of a sole defendant, if the cause of action survives or continues, the court must, on motioil, allow the action to be continued against his representative, does not require the court to allow substitution of defendant’s administrator where the complaint shows, on its face, that the action was not begun within the statutory period, and the answer pleads the statute.

Appeal from special term.

Action by Alexander J. Mayer against Philip 0. Bruns. On the death of defendant, plaintiff moved that Edwin G-. Bruns, his administrator, be substituted as defendant, and that the action be continued against him, claiming that it was obligatory on the court to grant the motion, under Code Civ. Proc. § 757, providing that, “in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against

his representative or successor in interest.” From an order denying the motion, plaintiff appeals. Affirmed.

The following opinion was rendered at special term by Mr. Justice CONLAN:

“The complaint shows on Its face that the action was not commenced within six years, and the answer pleads the statute of limitations. I see no reason for bringing in the administrator. Motion denied.”