Palen v. Bushnell — 21 N.Y. St. Rep. 867

Majority

p. 867

William Palen, Receiver, etc., Resp’t, v. Ezra L. Bushnell et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Practice—Action for accounting—When continued against executor.

Where in an action for an accounting as to certain real and personal property alleged to have been fraudulently transferred by defendant Bange to Bushnell, Bushnell died, Held, that the action could, in the discretion of the court, be continued against the executors of Bushnell.

•2. Same—Satisfaction of judgment—When section 376 Code Civil Procedure does not apply.

Objection having been made that the judgment in the action in which the plaintiff was appointed receiver having been recorded more than twenty years before the application for a continuance is presumed to be satisfied under section 376 Code Civil Procedure, Held, that that section does not apply to a remedy founded upon a judgment instituted before the period mentioned had elapsed.

3. Same—Construction of sections 755-760, Code Civil Procedure.

Where there were originally more than one defendant in an action, and of whom one has died, that one is a sole defendant within the meaning of the provisions of the Code relating thereto.

Appeal from order reviving and continuing this action .against the executor of Ezra L. Bushnell, deceased.

H. M. Whitehead, for app’lts; W. C. Holbrook, for resp’t.

The plaintiff was appointed receiver of Henry Bange in October, 1882, on proceedings supplementary to •execution by a judgment-creditor, and this action was commenced in December, 1883, for an accounting between the plaintiff as such receiver and the defendants as to certain real and personal property fraudulently transferred by Bange to Bushnell on the eve of insolvency without consideration and with intent to hinder, delay and defraud judgment-creditors. The defendant Bushnell died June 13, 1887, leaving a last will and testament, in which he appointed Adelaide E., his wife, executrix, and Ezra D. Bushnell and Albert Van Der Werken, executors. The will was admitted to probate, and letters testamentary issued to the persons named. At the time of Bushnell’s death, this action was pending before a referee, and the defendant, after a motion had been made to dismiss the complaint, which was denied, was about to enter upon his defense. .

It is hardly necessary to say that the action is one which may be continued in the exercise of the discretion of the court. Coit v. Campbell, 82 N. Y., 509 ; Holsman v. St. John, 90 N. Y., 461 ; Rumsey’s Pr., 663.

p. 868

The reasons assigned- for a reversal of the order made-permitting the continuance are ingenious but not meritorious.

The first suggestion is that the order should be reversed, for the reason that the plaintiff has no title to the cause of' action; and this is predicate of a supposed irregularity in-the order appointing the receiver. It is sufficient to say that this is not a subject which will be disposed of upon-affidavits, and especially as it is necessarily before the-referee, and if any benefit shall arise out of any incident of that kind, the defendant will be entitled to it.

The next proposition is, that the judgment in the action in which the plaintiff is appointed receiver is paid and satisfied; and this is founded upon the presumption arising. from the recovery of the judgment in August, 1862, which is more than twenty-five years ago. Section 376 of the-Code provides that after a lapse of twenty years the presumption of payment of judgments shall be conclusive. But that section does not apply to a remedy founded upon the judgment instituted long before the period mentioned had expired, and, indeed, within two years after the judgment was recovered.

The next point presented is that the motion should not be granted because the action was brought by the receiver without leave of the court, and that to authorize him to-continue would be a judicial sanction of a proceeding commenced without authority. It is sufficient in answer to •this point to say that it is too late after issue joined to urge successfully such an objection. Section 499, Code.

The next suggestion is that the plaintiff is not now a resident of this state, and that the plaintiffs in the action in which the receiver was appointed are both dead and have' no personal representatives and there are no persons in existence who would be entitled to the moneys to be collected in this action. There is, also, an assertion that the bond given by the. receiver is void and that the obligee is dead. None of these suggestions are of the slightest consequence on an application of this kind. The case seems to be regularly in court and having-been sent to a reference it must be assumed that every obstacle to that procedure was encountered and overcome.

It is further contended that a simple order of continuance-was all that the plaintiff was entitled to which would enable the plaintiff to avail himself of all the pleadings and proceedings; and again that the testimony upon the trial should not be permitted to stand.

It'is only necessary to say answer to propositions that it was purely a matter of discretion to be exercised by the court below and that there is nothing in the case which in our judgment indicates that the discretion was erroneously exercised.

p. 869

Again it is urged that the executors can only be brought before the court by a supplemental summons, and the action continued by supplemental pleadings, and reference is made to the Code, sections 755 to 760 inclusive. It will not be necessary in disposing of this appeal to consider these provisions in detail. It is sufficient to say that as there were two defendants in this case, the continuance was provided for by section 757, the court of appeals having decided in Coit v. Campbell (supra), that if there were originally more than one defendant in the action and of whom one has died, that one is a sole defendant within this section. The cases upon this subject are collated and well stated in Rumsey’s Pr., Vol. 1, 663, etpassum.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.