Board of Supervisors v. Tweed — 10 N.Y. Sup. Ct. 682

Majority

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THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, Respondent, v. WILLIAM M. TWEED, Appellant.

Headnote

Code, sec. 121 — substitution of parties plaintiff—new answer — when leme to serve, not allowed.

Under chapter 304, Laws of 1874, providing for the consolidation of the city and county of New York, an order substituting the consolidated corporation for the board of supervisors, in an action commenced by them and then at issue, is proper; and, as the complaint remains precisely the same after as before the order, the defendant is not entitled to serve a new answer, and permission so to do is properly refused.

Appeal from an order continuing this action in the name of the Mayor, Aldermen and Commonalty of the city of New York, and substituting them as plaintiffs.

David Dudley Field, Elihu Moot, W. O. Bartlett, Dudley Field, Wm. Fullerton, Edward Bacon, for the appellant.

E. Delafieldj Smith and Wheeler H. Peckham, for the respondent.

This action was commenced by the board of supervisors of the county of New York, to recover moneys alleged to have been

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fraudulently and corruptly received and applied to his own use by the defendant, as a public officer of the county. The moneys were claimed to have been the property of the county, for a recovery of which it was legally entitled to maintain the action. After an issue of fact was joined in it by the service of the defendant’s answer, and while it continued to be undetermined, an act was passed consolidating the city and county of blew York for the purposes of local administration and government. By this act the consolidated corporations were afterward to be known as the mayor, aldermen and commonalty of the city of blew York, and the rights, property, interests, claims and demands of the county, and of its board of supervisors, were vested in, and declared afterward to belong to, the consolidated corporation.^[1] This act went into effect on the 30th of April, 1874, and, by its terms, it transferred the cause of action set forth in the complaint in this suit, to the newly formed corporation. It was a right, claim or demand within the appropriate signification of those words, as they were embodied in the law. In consequence of this change and transfer, the motion appears to have been made which resulted in the order appealed from. Its obvious purposé was to place the action from that time in the name of the body that, by the act, had succeeded in its title, the preceding owmer of the demand, and have the real party in interest before the court as plaintiff.

The proceeding was in all respects a proper one, and provided for by the act regulating and governing to a very great extent the civil practice of courts of justice. By that act, when any other transfer of the interest in an action (which does not abate by the death of a party) than that occasioned by death, marriage or other disability takes place, the court in which it may be pending, may allow it to be continued in the name of the original party, or may allow the person to whom the transfer may be made to be substituted in the action,^[2] This provision very plainly includes the present case. For the demand relied upon as the cause of action, would not abate by the death of a plaintiff, even if it had been a natural person.^[3] And the act of 1874, by force of its provisions, transferred it to the consolidated

* Laws of 1874, chap. 304, § 1.

† † Code, § 121.

‡ ‡ 3 R. S. (5th ed.), 746, §§ 1,2.

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corporate body. The motion was made within the time prescribed for that purpose by the section of the Code already referred to, and no good reason appears why the order should not have been made.

It is strenuously insisted by the learned counsel for the defendant, that the court ought to have permitted him to sqrve a further answer. But there was nothing in the change made by the order, requiring that to be done, or even indicating its propriety in any respect. It did not change the charges made against the defendant, as the foundation of the right to recover. The complaint remained precisely the same after the order as it was before. And that had been met by the answer previously served to it, by such defenses as the defendant considered existed against the charges it contained. By the order, the newly formed body corporate was, from that time, made the plaintiff in the action, and it was placed in that relation to it, with no other or different rights than those previously existing in favor of the board of supervisors. It, at most, succeeded to such rights, and nothing whatever more than that. And there could be nothing in such a change, rendering any further answer on the part of the defendant necessary.

Upon making it, when that is properly done by motion, the Code providing for it contemplates no change in the pleadings if the action be already at issue. It merely provides for a simple proceeding, by means of which the succeeding party may take and prosecute the action from the point where the preceding party left it. The change gave the defendant no absolute right to set up any further defense. If the answer served in the case, was inadequate in any respect, the mode of supplying its defect was by motion on the defendant’s behalf, as long as the affidavit used to oppose the motion failed to present any case for that purpose. It was not enough to entitle the defendant to such-relief, that his attorney believed that leave should be given to serve an answer to the complaint as it was proposed to be amended, and that was all that was stated on this subject. The statement was altogether insufficient, for it showed no necessity for any amendment whatever. And besides that, it was entirely erroneous, for the complaint was in no respect amended. All that was done by the order was, to substitute the succeeding corporation from

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that time, and providing for the subsequent prosecution of the action in its name.

Upon the argument of this appeal, it was claimed that further pleadings by way of defense were required, to enable the defendant to contest the right of the newly formed corporation to succeed to the rights and claims of the board of supervisors of the county. But that very clearly is an erroneous view of the case. For that position must depend upon the effect to be given to the act providing for and making the consolidation, and no pleading on the part of the defendant can be required for its proper presentation. If the act can be shown to be constitutionally or otherwise invalid or inoperative, that can be determined, as the case now stands, under the order by oral objections taken upon the trial. No answer can be necessary for that purpose.

The objection that the new corporation has not been bound by the change made, is entirely untenable. The notice of motion for it was subscribed by the corporation counsel and attorney for the plaintiff, then in the case, and that sufficiently exhibited its consent to be made a party to the action. Besides that, the substituted plaintiff appeared on the argument, and objected to a reversal of the order.

The order was right, and it should be affirmed, with ten dollars costs, besides disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed with ten dollars costs, besides disbursements.