Hobart v. Martin — 16 N.Y. St. Rep. 925

Majority

p. 925

Nathan Hobart, Resp’t, v. Lewis F. Martin et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

Practice—Revival op action—Code Civ. Pro., § 758—Severance discretionary.

Under Code Civ. Pro., § 758, it is entirely discretionary with the court whether, after reviving the action against the personal representatives of a person jointly liable upon a c ntract, it severs it or not, even where the whole cause of action is several as well as joint.

Appeal by George Leask, executor of the last will and testament of Norman Peck, one of the defendants, from an order of the special term, reviving and continuing this action against him.

Aaron Pennington Whitehead, for pl’ff and resp’t; J. Hampden Dougherty, for appl’t, Leask.

Counsel for the appellant seems not to object to the order reviving the action against the executor of Norman Peck, deceased, but claims that the court should have severed the action, and permitted separate trials thereof.

Section 758 of the Code of Civil Procedure provides that the estate of a person jointly liable upon a contract with others shall not be discharged by_ his death, and permits the court to make an order to bring in the personal representative of the decedent, when it is necessary so to do for the proper disposition of the matter; “ and where the liability is several as well as joint, may order a severance of the action, so that it may proceed separately against the representative of the decedent, and against the surviving defendant or defendants.”

Under this statute, it is entirely discretionary with the court whether, after reviving the action against the personal representative, it severs it or not, even where the whole cause of action is several as well as joint. The complaint contains two counts or causes of action, in one of which the defendants are charged jointly and severally, and in the other are charged jointly. As there could not be a severance under this statute of the cause of action stated to arise from the joint liability of the original defendants, there seems to be no good reason for severance for any purpose.

The order appealed from should be affirmed with costs.

Van Brunt, P. J., and Bartlett, JJ., concur.