Lehman v. Koch — 30 N.Y. St. Rep. 224

Majority

p. 224

Henry Lehman, Assignee of Daniel Stumm, Pl’ff, v. Harry H. Koch, as Sheriff of Erie Co., Def’t.

(Superior Court of Buffalo,

General Term,

Filed March 24, 1890.)

Headnote

1. Abatement and revivob—Replevin—Laches.

The action was replevin, based on conversion of personal property. Defendant died over a year after the action was commenced and a motion to revive was made more than two years after letters of administration were granted Held, that such motion was properly granted ; that in actions at law, § 757 of the Code is mandatory and mere lapse of time will not defeat the application.

2. Same.

The fact that the action is entitled against the defendant, “as sheriff,” will not suffice to defeat such motion, as the complaint shows individual liability alone; such designation is descriptive merely.

Appeal from an order directing the substitution of the personal representative of Harr H. Koch, deceased, as defendant in the action.

Giles Stilwell, for pl’ff; Baker, Schwartz & Bake, for def’t.

The plaintiff commenced his action on the 30th day of September, 1885; issue was thereafter joined by the service of an answer. About January 25, 1887, defendant died intestate, and on February 2d, same year, letters of administration were issued to Harriet H. Koch, who was by the order appealed from directed to be substituted as party defendant. The charge contained in the complaint shows it to be an action of replevin, based upon an alleged conversion by defendant of a quantity of personal property, with the usual prayer that in the event the property was not returned that judgment for its value should be awarded, together with damages for its detention. The property was not retaken by plaintiff, and subsequently a sum of money was substituted by plaintiff in lieu of the property seized, and by stipulation the fund thus created was held as the representative of

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the property to await the final determination of the issue. The objection urged in support of the- appeal, by which the order herein is sought to be reversed, is based upon the ground of laches in applying for the order substituting defendant’s representative. By the moving papers it appears that something over two years elapsed between the issuing of letters of administration and the application to substitute, which, added to the time when the action was commenced, shows that the Statute of Limitations has run in favor of defendant, and the claim is that such fact is to be adopted as the. guide in determining the right of plaintiff to the substitution granted. Such seems to be the established rule in equitable actions. Coit v. Campbell, 82 N. Y., 509 .

But in actions at law it seems that § 757 of the Code is mandatory, and that mere lapse of time will not enable to defeat the application. Holsman v. St. John, 90 N. Y., 461 ; Evans v. Cleveland, 72 id., 486 .

The farther claim is made that no cause of action is alleged against the defendant in the action. An examination of the complaint shows that it is therein alleged that at a specified time and place within the jurisdiction of the court, the defendant wrongfully took and wrongfully detains from the plaintiff certain articles of personal property, which are therein set out in detail; that the property was the property of the plaintiff, whose interest and capacity to sue is therein particularly alleged. The allegations are followed by a prayer for relief, recognized as appropriate to such actions. It is quite clear that a perfect cause of action is stated in the complaint. This does not seem to be denied, but the criticism is that the complaint is entitled in form against the defendant “ as sheriff,” while the allegations of the complaint show alone individual liability.

Whatever the rule may have been, assuming the point to be well taken, such defect is not now available to defeat an otherwise good cause of action, and such designation of a party is to be regarded as descriptive of the person, and does not in any manner change the effect of the facts alleged. Murray v. Church, 1 Hun, 49 ; affirmed 58 N. Y., 621 ; Berford v. Barnes, 45 Hun, 253 ; 10 N. Y. State Rep., 386; Phoenix Bank v. Donnell, 40 N.Y., 410 .

It is doubtless true that an action would lie against the sureties upon the sheriff’s official bond for the act complained of, but in such case, in the event of a recovery, execution would issue in the first instance against the individual property of the sheriff. Crocker on Sheriffs, § 894.

So the result is the same. This action, therefore, treated as one against the individual, is well brought. As the allegations of the complaint show that the act has diminished the property of the plaintiff, it is proper that the representative should be substituted.

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

Beckwith. Ch. J., concurs; Titus, J., not sitting on this case.