East River Bank v. Cutting — 14 N.Y. Super. Ct. 636

Majority

p. 636

The East River Bank v. Cutting and Caldwell.

Headnote

When two persons are named as defendants in a summons and'complaint,' and only one is served, and judgment is thereupon perfected against him, there is, then, no action pending against the other, until he is served with the summons.' "

If he is-servedwith it, after judgment against the other, and intermediate those periods, the title to -the cause of action becomes vested.in a third person, the latter cannot, under § 121 of the Code, be substituted, as -plaintiff in'the -action against the defendant last served.

(At Special Term,

December 3, 1857.

Boswobth, J.)

The defendants are.sued as maker and endorser of a noté; Cutting, the maker, was served with the summons in July, last, and judgment entered against him, on failure, to answer. On the 10th of October, the operations of the plaintiff were suspended by the appointment of David Banks as a Receiver.. Caldwell was severed with the summons on the 12th of ¡November. ■ It is now moved that the Receiver be made plaintiff in the action, by substitution, which the defendant opposes.

There has been no transfer - of interest-pending the action. By taking judgment against Cutting,-the action was severed, and as to Cutting, determined by the judgment. There was,-then, no action pending as against Caldwell, Itcould only be commenced by the service of the summons upon. him. Before it was so commenced the cause of action was transferred to the Receiver. The motion cannot be granted under § .121 of the Code. If the action could he brought in the name of the present plaintiff, by serving the summons on Caldwell, when service of it was made on him, a recovery can be had -in the name of the present plaintiff. If it could not, then, granting the motion, would be substituting, after issue joined, a person, as plaintiff, who had a right to sue, for one who had no right to sue. Motion denied; with $7 costs to abide event.