Piering v. Henkel — 18 N.Y. St. Rep. 823

Majority

p. 823

Henry Piering, Pl’ff, v. John Henkel, Def’t.

(City Court of New York, Special Term,

Filed October, 1888.)

Headnote

Practice—Effect of death of sole defendant.

The death of a sole plaintiff or defendant suspends all proceedings in the action until it is revived against the legal representatives of the deceased. The death of the party revokes the appointment and power of the attorney.

Decision on motion to vacate judgment.

J. 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. Wells on Attorneys, §§ 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

p. 824

has never been revived. Jarvis v. Felch, 14 Abb., 46 ; Reed v. Butler, 11 id., 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’s Pr., 152.

It follows that the motion to vacate the judgment must be granted, but without costs.