Wood v. Flynn — 37 N.Y. Sup. Ct. 444

Majority

p. 444

JAMES R. WOOD and JOSEPH K. MERRITT, as Surviving Executors and Trustees, etc., of JAMES ROWE, Deceased, Respondents, v. ANNE C. FLYNN, Appellant, Impleaded with NATHANIEL JARVIS, Jr., and LOOMIS L. WHITE, as Executors and Trustees, etc., of FRANCIS W. WORTH, Deceased, and Others.

Headnote

Revival of action 'upon a motion — Code of Civil Procedure, sea. 757 — power of the court to continue the proceedings and order that evidence already hea/rd and taken stand good in the cause as revived.

Where the court, upon a motion made under section 757 of the Code of Civil Procedure, orders an action brought by a sole surviving executor, who has since died, to be revived, and an administrator with the will annexed to be substituted in the place of the deceased executor, it may direct that his name be substituted in the record and pleading, and that the pleadings, proceedings, and evidence already had and taken, stand as the pleadings, proceedings and evidence in the cause so revived.

p. 445

Appeal by the defendant Anne C. Flynn from an order.made at Special Term, which “ ordered that the said Austin Abbott, as administrator with the will annexed, and as trustee as aforesaid, be and he is hereby substituted as plaintiff in this action, in place of James E. Wood and Joseph K. Merritt, two of the trustees appointed in and by the will of the said James Eowe, who are now deceased, and that this action be continued in the name of the said Austin Abbott, as administrator, with the will annexed, and trustee as-aforesaid, as sole plaintiff in said action.

“ It is further ordered that the name of Austin Abbott, as aforesaid, be substituted in the place and stead of James E. Wood and Joseph K. Merritt, now deceased, upon the record herein, and the pleadings herein, and the proceedings and evidence already had and taken in the cause, stand as the pleadings, proceedings and evidence in the cause hereby revived and continued as aforesaid.”

James Otis Hoyt, for the appellant Flynn.

William Ives Washburn, for the respondents.

This order substitutes Mr. Abbott administrator with will annexed in place of plaintiffs who were sole surviving executors under the wiR of James Eowe deceased, and practically orders that the suit proceed in his name as plaintiff from the point to which it had progressed at plaintiff’s death. It seems that plaintiff and Worth were the executors of the will. The complaint alleges that at a sale óf real estate belonging to the testator, Worth bought one parcel in his own name for the benefit of the estate. If this was true, he of course held this title in trust. He died while thus holding it After his death the surviving executor sued to declare and enforce that trust. The survivor then died and Mr. Abbott was appointed administrator with the will annexed. It is conceded that the present appointment is in his behalf. It asks that he be substituted in place of the plaintiff who brought the action. This was his plain duty. The court may, and in a proper case must order the substitution and continuance upon motion under section 757 of the Code of Civil Procedure.

This section provides a summary remedy in such cases and seems

p. 446

to have been intende4 to direct the continuance of the action upon the original pleadings in the name of the substituted party, plaintiff or defendant, or as the case may be. There would seem no occasion for supplemental issues, because the whole business by this section is to be entertained on motion. It was intended that if any reason for supplemental issues existed, it should be disclosed on the motion. No such cause was shown and none is now pretended.

The order should be affirmed, with costs and disbursements.

Present — Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.