p. 317have been for the past eighty years and upwards the sole owner of the natural deposits of guano in the Chincha and Gfuanape Islands, and, since 1865, to have carried on the business, through its agents, of exporting it to the United States, and selling it there.
This action was brought to perpetually restrain the defendant from using and imitating the trade marks used by plaintiff in the sale of Peruvian guano, and from selling mixed and spurious guanos as the genuine, and for damages for such use, imitation and sales.
A temporary injunction was granted on July 24,1873, which was continued in force until the further order of the court, by an order made on notice to the defendant, on October 7, 1873. This was after the defendant had answered, and he did not oppose the continuance of the injunction, and never moved to vacate or modify it.
The action has never been tried. The defendant died November 10, 1874.
A. J. Perry, attorney, and of counsel for appellant, urged:
I. The cause of action survives (2 R. S. 447). It is to redress ‘1 a wrong done to the property, rights, or interests of another, for which an action might be maintained against the wrong doer.”
II. If the cause of action survive, the action does not abate by death (Code, § 121).
III. The subject-matter of the order is a substantial right, and appeal from the order lies to the general term (St John v. Croel, 10 How. 253 ; Norton v. Wiswal, 14 How. 42 , 46.
IV. The defendant, at his death, had acquired such an interest in the prosecution of the action as entitles his representatives to have it continued. Costs had accumulated, counsel fees had been incurred, and injunction had been issued, which interfered with and injured his business, and damages may have been suffered—all to the certain detriment of the estate, if the order is per
p. 318mitted to stand ; and as to all of which the estate may derive protection and indemnity if the action proceeds (Livermore v. Bainbridge, 49 N. Y. 135 ).
Duncan Smith, of counsel for respondent, urged :
I. Under the Revised Statutes, an action at law abated on the death of a sole plaintiff or defendant before interlocutory or other judgment or verdict, and no proceedings could be had to revive it (3 R. S. 386, 388). In equity, a suit abated by the death of a sole complainant or defendant, the complainant or his representative could revive; but no such right existed on the part of the defendant. If the sole defendant died, his representatives could not revive the suit unless the deceased defendant had acquired some right under a decretal order therein (Souillard v. Dias, 9 Paige, 393).
II. Section 131 of the Code has not changed the former practice, which confined the right of continuing the action to the complainant or his representatives, unless the defendant had acquired some rights in the litigation (Keene v. Lafarge, 1 Bosworth, 671 ; Livermore v. Bainbridge, 49 N. Y. 135 ).
III. The rights acquired by a deceased defendant, which would entitle his representative to have the action continued, must either arise under a decree or decretal order, or from some proceeding in the action by which the defendant had become an actor (Supra, Souillard v. Dias; Livermore v. Bainbridge). In Schuschard v. Reimer ( 1 Daly, 459 ), “the defendant died, after he had obtained judgment against the plaintiffs for costs, and after they had appealed from the judgment.”
IV. The defendant in this case had acquired no such rights in the litigation, nor are there any circumstances in the case which would justify the exercise of the power to compel the plaintiff to continue against its
p. 319wish. There has been no decree or interlocutory order in the action ; no counter-claim is set up in the answer. If it be said that the defendant would have been entitled to prove that he was damaged by the injunction, in case it had appeared as the result of the trial, that the plaintiff was not entitled to it, the answer, in the first place, is, that the defendant rested quietly under the injunction for more than a year, without any effort to vacate or modify it, which he would not have done if he 'had been damaged by it, and could have shown that plaintiff was not entitled to it. And the defendant had in no respect become an actor in the suit up to the time of his death.
The only question presented by this appeal is, whether upon the death of a sole defendant after issue joined and before a trial, his administratrix has the right to have the action continued against herself.
The Code, section 121, as interpreted by the courts, does not sustain the claim of the appellant, that by it such a right is conferred (Keene v. La Farge, 1 Bosw. 671 ; Kissam v. Hamilton, 20 How. Pr. 377 ). The practice, as it was before the adoption of the Code, and as governed by the Revised Statutes, remains in force in this respect. It would be often unjust in a case where the defendant interposed a counter-claim, or acquired rights or benefits in. the litigation before his decease, that his representatives should be debarred from having the action continued against them upon their motion. In these contingencies when existing rights should be protected, the law is construed to give the right to the representatives of the deceased defendant to have the action continued against them, and to apply for this relief by motion upon papers showing a proper case (Livermore v. Bainbridge, 49
p. 320N. Y. 125 ; McDermott
v. McGowan, 4
Edw. 592 ; Souillard
v. Dias, 9 Paige, 393).
The difficulty in the present case is, that the appellant fails to show that the defendant had acquired any rights in the litigation, or that any prejudice would result to the estate by not continuing the action. The appellant’s affidavit upon which the motion was made, sets forth nothing of that nature. The admission of her counsel stated in the order appealed from, that “ October 7, 1873, upon notice to the defendant, and without opposition from him, an order was made in this action, continuing in force until the further order of this court, the injunction order theretofore made in the action, and that the defendant never made any motion to vacate or modify the said injunction,” would seem to indicate there was no serious grievance or detriment in consequence which the appellant could establish by affidavit.
It does not appear that the appellant would derive any benefit from having the motion granted. See McDonald v. James (38 Superior Ct. Rep. 76), and no case is shown calling for the exercise of any discretionary power on the part of the court to grant it.
The order appealed from should be affirmed with costs.
Monell, Ch. J., concurred.