People ex rel. Collins v. Donohue — 46 N.Y. St. Rep. 478

Majority

p. 478

In the Matter of The People ex rel. Maria Louisa Collins, Trustee, Resp’t, v. Charles Donohue et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

1. Abatement and revivor—Death of party after submission.

Where the relator jn a proceeding which survives dies after the case is

p. 479

taken under advisement by the court, it is matter of course to continue it in the name of his legal representative, and a supplementary eomjilaint is not necessary, as the case will necessarily be decided on the facts and law as they existed at the time of such death.

3. Same—Code Civ. Pro., §766.

The mere fact that the designation "trustee” was appended to the name of the original relator does not necessarily require the continuance to be in the name of the successor as trustee under § 766. That section only applies to an action or special proceeding brought in the name of a public officer, or by a receiver or other trustee appointed by virtue of a statute.

Appeal from, order continuing this action in the name of John Collins, successor to Maria L. Collins, deceased, as relator.

A. Kling, for app’lts; A. M. Card, for resp’t.

As this was an action which survived, it was a matter of course, under § 757 of the Code of Civil Procedure, upon the death of Maria Louisa Collins, to continue it in the name of her legal representative.

There was no necessity, as claimed by the appellant, for a supplemental complaint to enable the defendants to take advantage of any legal objection to the action as it was originally brought

The case was under advisement when Maria Louisa Collins died, and it will necessarily be decided upon the facts and the law as they existed at that time.

Nor was it necessary to continue the action, under § 766 of the Code, in the name of the successor to Maria Louisa Collins as trustee. That section only applies to an action or special proceeding brought in the name of a public officer, or by a receiver or other trustee appointed by virtue of a statute. There is nothing in the record to show that Maria Louisa Collins came within this definition. On the contrary, that record shows that she alone was personally interested in. the recovery of the fund for which the action was brought, and the designation “ trustee,” etc., appended to her name as relator, so far as we are informed by this record, was a mere descriptio personae.

The averments of the petition upon which the order appealed from was made are not denied; and those averments clearly show that the order substituting the legal representative of Maria Louisa Collins was right.

The purpose of the order appealed from was to permit the learned judge who has the case under advisement to decide it; and the revival properly accomplishes that object without the least prejudice to the defendants, or to any defense which they have interposed.

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

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.