Wamsley v. H. L. Horton & Co. — 68 N.Y. St. Rep. 458

Majority

p. 458

William E. Wamsley, App’lt, v. H. L. Horton & Company, Limited, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 14, 1895.)

Headnote

Pleading — Answer—Is abatement.

A corporation cannot plead in abatement its dissolution pending an action against it.

Appeal from an interlocutory judgment, overruling a demurrer to the answer.

This action was begun January 9, 1893, by the personal service •of the summons and. complaint, to, recover damages for an alleged breach of contract. When the contract set out in the complaint was entered into, and when this action was begun, the. defendant was a corporation organized and existing under the. laws- of the United Kingdomtof Great Britain and Ireland, and engaged in business at the city of New York The • defendant appeared in the action and moved to set aside the service of the summons and complaint, which motion was denied. 68 Hun, 549 , 52 St.Rep. 767 ; 70 Hun, 598 ; 54 St. Rep. 935 ; 139 N. Y. 656 ; 54 St. Rep. 934 . Subsequently the defendant demurred to the complaint, but its demurrer was. overruled. 77 Hun, 317 ; 59 St. Rep. 373 . Thereafter the defendant answered, and later served an amended ■■answer. November 21, 1894, a paper called a second amended answer was served, setting out. four defenses, — the fourth being that the defendant was dissolved, at London, England, on or about May 23, 1893. This document, denominated the second amended answer, was verified November 20, 1894, by one of the firm of attorneys, who is the defendant’s attorney of record in the action. The plaintiff demurred to t.he fourth defense on the ground “ that it is insufficient in law, upon the face thereof.”

Alexander S. Bacon, for app’lt; John R Dos Passos, for resp’t.

— A sole defendant, who has died during the pend-ency of an action, cannot by bis attorney plead his own death as a defense to the action. Nor can any defense be interposed by or in the name of a dead defendant. The fact that the defendant is a corporation does not alter the rule. In case a sole defendant •dies, all subsequent proceedings taken by thp plaintiff in the action, before the defendant’s representatives are brought in, are Void. A judgment entered upon such circumstances would be invalid. When it is shown that a sole defendant has died, it is usual to enter a suggestion of the fact on the record, which suspends all subsequent proceedings until the representative is brought in. It is very clear that a dead defendant cannot plead

p. 459

its death or any other fact as a defense. The authority of the attorney of record to act further in the case ceases upon the death of the client, and he can take no further steps in the action under .his original retainer. We are unable to see on what principle any of the defenses interposed by this second amended answer can be demurred to. This answer ought not to have been received by the plaintiff’s attorney, and, if filed with the clerk of the court, it should have been stricken out. A notice of motion to strike out such an answer may be served upon the person who assumed to serve and file it. The record before us is a strange one, and, we think, without precedent. We have a judgment asserting that a dead defendant has interposed a valid defense, and awarding it costs on the trial of an issue of law. We think the practice is without precedent, and without authority, and that neither the second amended answer nor any of the papers subsequently served or entered are valid, and they form no part of the record in this case, and that the second amended answer and all subsequent proceedings should be vacated and set aside,, with costs to either party.

All concur.