Leake v. Bundy — 15 N.Y. St. Rep. 542

Majority

p. 542

Thomas B. Leake, App’lt, v. Mary J. Bundy (Henry S. Bundy, her Adm’r), Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 14, 1888.)

Headnote

1. Parties to action—Death op party—Substitution op administrator —When not permissible.

This action was brought for the foreclosure of a mortgage. Judgment of foreclosure and sale was entered therein directing that the referee, to make the sale, should report the deficiency, that the defendant should pay the same to the plaintiff and that the purchaser should he let into possession on production of the referee’s deed. A sale of the mortgaged premises was made in accordance therewith, upon which there was a deficiency, and a report of the sale was made and filed, the purchaser taking possession of the premises. Subsequently the attorneys for the parties died and the defendant herself also, and thereafter, and more than twenty years after the filing of the referee’s report, a motion was made by the plaintiff to substitute the administrator of the deceased defendant as defendant, and to confirm the referee’s report of sale in foreclosure, and for a judgment of deficiency, or for such confirmation and judgment in the name of the original parties, without substitution. Held, that there could be no substitution for the original defendant, because final judgment having been rendered in the action before her decease, it was at an end.

2. Same—Death op party—Continuance op action—Code Crv. Pro , § 757—What case not within.

Held, that the case was not within Code Civ. Pro., § 757, providing for the continuance of actions because the cause of action was merged and lost in the final judgment.

3. Same—Death op party—Substitution—When necessary.

Held, that no proceeding could he taken in the action without substitution.

p. 543

4. Same—Entry of final judgment after death of party—Code Cry. Pro., § 763—What cases are not within.

Held, that the case was not within the provisions of Code Civ. Pro., § 763, providing for the entry of final judgment in the name of the original parties, after the death of either party where an interlocutory judgment had been previously entered, because the judgment was already final.

Appeal from an order of special term, denying plaintiff’s motion to substitute the administrator of the deceased defendant, as defendant, and to confirm a referee’s report of sale in foreclosure, aud for judgment for a deficiency; or for such confirmation and judgment, in the name of the original parties, without substitution.

Fanning & Williams, for pl’tf-app’lt;' Wynkoop & Mice, for adm’r-resp’t.

—The mortgage was for $2,000, of the purchase money of the premises, sold by the plaintiff to the defendant for $2,500, of which $500 was paid down. The action was for the first installment of $200, due on the mortgage. Judgment of foreclosure and sale was entered July 17, 1867; it directed that the referee, to make the sale, should report the deficiency, that the defendant should pay the same to the plaintiff, and that the purchaser should be let into possession on production of the referee’s deed.

The sale was made August 10, 1867. The plaintiff became the purchaser for $300, leaving a deficiency of more than $2,000. The report of sale was made August 13, 1867, and was filed October 25, 1867. The plaintiff took possession of the premises and in June following sold them for $2,250 in cash.

The plaintiff’s attorney, the defendant’s attorney and the defendant herself all died before this motion was made, or another proceeding was had after the filing of the referee’s report of sale, more than twenty years before.

There can be no substitution for the deceased defendant in this action, because the action was at an end before her decease. It had been prosecuted to final judgment. The judgment in this case was final and not interlocutory merely. It left nothing farther to be adjudicated by the court. Morris v. Morange, 38 N. Y., 172 .

The case is not within section 757 of the Code of Civil Procedure, providing for the continuance of actions, even as amended in 1879, because the cause of action does not survive or continue. The cause of action was merged and lost in the final judgment.

No proceeding can be taken in the action without substitution. The case is not within the provisions of section 763 of the Code, providing for the entry of final judgment in the name of the original parties, after the death of either

p. 544

party, where an interlocutory judgment, etc., had been previously entered; because as we have seen the judgment already entered was the final, and not an interlocutory judgment.

There was very much in the facts of this case to lead the court, in its discretion to deny this motion, so far as the court had a discretion in the premises; but upon strict legal grounds the motion was properly denied.

The order must be affirmed, with costs.

All concur.