Secor v. Clark — 54 N.Y. Super. Ct. 461

Majority

p. 461

HORACE SECOR, Jr., et al., Respondents, v. MARY J. CLARK, as Executrix, &c., Appellant.

Headnote

Death of sole defendant after interlocutory judgment—Effect on 'entry of final judgment, and on the time to appeal, and on an appeal from the final judgment by the person substituted for the deceased.

Where an interlocutory judgment against a sole defendant gives him a certain number of days to answer the complaint, and he, during the running of those days, dies, final judgment cannot be entered until after the revivor of the action, and the neglect of the person against whom the revivor is had to answer within a period subsequent to such revivor equivalent to the number of days remaining unexpired at the time of the death.

Although final judgment is prematurely entered, and is entered against the deceased defendant, the persons against whom the action is subsequently revived may appeal from it within thirty days after its service on him, and the effect of such appeal is to bring the merits before the court.

Before Sedgwick, Ch. J., Freedman and O’Gobman, JJ.

Decided May 18, 1887.

Motion to dismiss appeal.

p. 462

This action was originally brought against Samuel B. Clark. He demurred to the complaint. The demurrer was overruled with leave to answer in twenty days. An interlocutory judgment to this effect was entered and served. Within the twenty days Clark died without having answered. After the expiration of the twenty days no answer having been interposed, plaintiff entered final judgment against Clark. Thereafter on the motion of Mary J. Clark the executrix of the will of said Clark, she was substituted for said Clark, and the action was ordered to be continued against her as such executrix. Subsequently thereto and on the 4th day of March, 1887, a copy of said final judgment with notice of its entry was served on her attorney. On the 9th day of March she duly appealed to the General Term from such final judgment.

A motion is now made to dismiss the appeal.

John T. Cornell attorney, and of counsel for respondents, and for the motion.'

G-. W. Cotterill, attorney, and of counsel for appellant, opposed.

An order or interlocutory judgment was entered, that directed that final judgment in favor of plaintiff be entered unless the defendant answer within twenty days. Before the twenty days had past, the defendant died. As there was time to elapse in which'the defendant or bis representative had, according to the nature of the adjudication, an opportunity to defend, the order or interlocutory judgment did not become absolute by the expiry of the twenty days, and would not become absolute, until there was a party to the action who might competently interpose a defense within the remainder of the twenty days after the death, or such further time as the court should give in its discretion. In reality the action abated at the death,

p. 463

until it should be revived, and the condition of the order being interrupted by death and therefore there being no absolute order or interlocutory judgment, final judgment could not properly be entered until after revivor and substitution, with proper directions due to the particular circumstances made in the order of revivor.

This opinion that final judgment was prematurely entered, does not affect the merits of the appeal taken from it. There has been a substitution of the executrix and service of copy of final judgment upon her with notice and an appeal by her from the judgment. This brings before the court the merits. But the time within which to appeal did not begin, until service of the copy of the judgment.

Motion denied with $10 costs.

Freedman and O’Gorman, JJ., concurred.