Pierson v. Morgan — 9 N.Y. St. Rep. 304

Majority

p. 304

Henry R. Pierson, as Receiver, etc., App’lt, v. Andrew W Morgan, Resp’t.

Supreme Court, General Term, First Department,

Filed May 13 1887)

Headnote

Practice—Bevivinq action—Death of defendant—Who mat mote— Code Civil Pro., § 757.

Under section. 757 of the Code of Civil Procedure, the representatives of a deceased defendant have the privilege of having an action revived, so that it may proceed to judgment. This right is not wholly vested in the plaintiff. The representatives of the deceased defendant may properly move for a revivor. Limrmm'e v. Bainbridge, 49 N. Y., 125 , explained and followed

Appeal from an order directing the plaintiff to cause the action to be revived, or in default thereof that the administratrix of the deceased defendant be substituted and simultaneously the action be dismissed with costs and allowance.

Raphael J. Moses, Jr., for app’lt; P. Harwood Vernon, for resp’t.

The case of Livermore v. Bainbridge ( 49 N. Y., 125 ), is an express authority that under section 121 of the Code of Procedure, the personal representatives of a deceased defendant could not have an action revived, unless the deceased defendant had acquired some right by some interlocutory judgment therein or had become an actor in the proceeding by the presentation of a counterclaim, and this conclusion was based upon the wording of this section which permitted the revivor within one year to be upon motion, or afterwards upon supplemental complaint. It was deemed by the court that the reference to a revivor by supplemental complaint assumed that the plaintiff or his representative is the moving party referred to.

In the Code of Civil Procedure, however, these words are omitted from section 757, as such section now stands, and they were probably omitted because of the construction which had been placed upon them in connection with this matter of revivor, as there would seem to be no good reason why the representatives of a deceased defendant should not have the privilege of having an action revived so that it might proceed to judgment instead of that right being vested wholly in a plaintiff.

We think that in view of the present language of the Code that the case cited is an authority in favor of the

p. 305

order appealed from and such a construction seems to be in evident accordance with the language of the section. The provision as to allowance does not seem to have been an improper exercise of discretion. The plaintiff may continue the litigation if he so desires, and if not, he should be required to pay the usual terms as a condition of being permitted to retire.

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