Affidavit of death of defendant, etc. - Notice of motion, etc.

judgment against the said E. F., as executor, for the costs of this action, with dollars, costs of this motion).

A. B. MOORE,

MORTIMER WADE,

Clerk.

Attorney for Defendant.

Affidavit of death of Defendant and Appointment of Executor.

(Title of cause.)

COUNTY OF

John Doe, of the county of

I. That on or about the

day of

being duly sworn, says: 187 he commenced an action in this court against Richard Roe, the defendant above named, for (state cause of action and its condition).

day of

II. That on or about the 187 said defendant died, as deponent is informed and believes, having first made and published his last will and testament in which, among other things, he appointed William Roe of

executor.

day of

his

187, the

III. That on or about the surrogate of issued letters testamentary to said William Roe, who thereupon entered upon the execution of his duties as executor.

IV. That said action is still pending and undetermined, and no proceedings to continue the same have been taken to the knowledge of the deponent.

(Jurat.)

JOHN DOE.

Notice of motion to continue action against Executor of Deceased Defendant.

(Title of cause.)

the

at

Please take notice: That on the affidavit of which a copy is herewith served upon you, and upon the pleadings in this action, I shall apply to this court at a special term to be held at in the day of o'clock, in the noon, or as soon thereafter as counsel can be heard, for leave to continue this action against William Roe, as executor of Richard Roe, deceased, in the place of said deceased defendant; and for such other and further relief as to the court may seem just, with the costs of this motion. C. M. PARKE, Plaintiff's Attorney.

(Date.)

To A. P. SPRAGUE, Esq.,

Defendant's Attorney.

TO WILLIAM ROE, Executor.

Order to continue action, etc.- Death of sole defendant.

Order to Continue action against Executor of Deceased Defendant.

(Title of cause.)

(Caption.)

On reading and filing the affidavit of John Doe, plaintiff, and on motion of C. M. Parke, of counsel for the plaintiff, after hearing A. P. Sprague, of counsel (for the late defendant and) for William Roe, executor.

ORDERED: That William Roe, the executor of the abovenamed Richard Roe, late defendant in this action, now deceased, appear and answer the complaint herein, within eighty days from the service of a copy of this order upon him; or, that in default thereof, the plaintiff may apply to the court for an order entering his appearance, and directing the action to stand revived and continued against him as executor of the said Richard Roe* and that the answer of said Richard Roe be then deemed the answer of the said William Roe, executor as aforesaid (or where no answer has been served, omit the words following the* and insert), and that he then have judgment for failure to answer.

This order is framed in accordance with the provisions of sections 109, 112, of 2 R. S. 185, as the Code fails to provide a mode for compelling the appearance of a representative who refuses to continue the defense in an action against the deceased defendant.

Section 3. Death of sole defendant.

a. In general. The provision of the Code, as to the abatement of actions, applies equally to all parties - plaintiff or defendantand the general rules given in relation to proceedings in an action on the death of a sole plaintiff are generally applicable to proceedings on the death of a sole defendant. See § 1, ante, 140, 142. b. Effect of the death of a sole defendant in an action for personal injuries. The Code provides, that, when the cause of action survives or continues, the action will not abate on the death of the defendant, but may be continued against his personal representatives. Code, § 121. The cases in which a cause of action survives to or against the personal representatives of a deceased party have been already discussed. See 2 R. S. 447, §§ 1, 2 (467); see, also, § 1, ante, 142, sub. c.

But there are cases in which an action survives to, but not against, the personal representatives of a deceased party. Thus, an action of replevin does not abate on the death of a sole plaintiff, but may be revived in the name of the representatives of the deceased. But on the death of a sole defendant in replevin the

Death of one of several defendants.

action wholly abates, and the court has no power to order the action to be continued against the personal representatives of the defendant. Hopkins v. Adams, 5 Abb. 351; S. C., 6 Duer, 685; Lahey v. Brady, 1 Daly, 443; Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619; S. C., 2 Trans. App. 73; Mosely v. Mosely, 11 Abb. 105; Moseley v. Albany Northern Railroad Co., 14 How71; Kissam v. Hamilton, 20 id. 369. See Waldorph v. Bortle, 4 id. 358.

After a verdict has been rendered in any action for a wrong, the death of the defendant will not cause the action to abate, but the case may proceed thereafter in the same manner as in cases where the cause of action now survives by law, even though the cause of action is not such as would, under the statute, survive against the personal representative of the defendant. See Code, § 121; Wood v. Phillips, 11 Abb. N. S. 1.

c. In actions of ejectment. The principles laid down in this section, in relation to actions for the recovery of personal property, apply also to actions for the recovery of the possession of real property, and the authorities there cited establish the rule that actions of ejectment abate on the death of the sole defendant therein, and cannot be revived against the personal representatives of the deceased.

d. Actions against public officers. As to the rule in relation to the abatement of actions against public officers see § 1, sub. e, ante, 146; see, also, Orser v. Glenville Woolen Co., 11 Abb. N. S. 85.

Section 4. Death of one of several defendants.

a. In actions on a joint liability. Upon the death of one of several defendants in an action upon a joint liability, the suit should be continued against the surviving defendants. The death of one of several parties jointly liable does not abate the action, and it must be continued against the survivors alone, as it is not generally proper in an action at law to join the legal representatives of a deceased joint debtor as defendants with the surviving debtors. Fine v. Righter, 3 Abb. N. S. 385; Voorhis v. Child's Executor, 17 N. Y. (3 Smith) 354. See Mc Vean v. Scott, 46 Barb. 379; Union Bank v. Mott, 27 N. Y. (13 Smith) 633; Richter v. Poppenhausen, 42 N. Y. (3 Hand) 373; S. C., 9 Abb. N. S. 263. An action may be maintained against the representatives of a deceased partner upon a partnership liability, when it is proved that the surviving partner is wholly insolvent, with

Death of a judgment debtor.

out first exhausting the remedy at law against him. Riper v. Poppenhausen, 43 N. Y. (4 Hand) 68.

It will be the safer practice also to procure an order of the court directing the action to proceed against the survivors, even if such order is not strictly necessary. See Gardner v. Walker, 22 How. 405; Taylor v. Church, 9 id. 190; S. C., 12 N. Y. Leg. Obs. 156; Lachaise v. Libby, 13 Abb. 6; S. C., 21 How. 362. Where the parties are not partners, and the liability is joint and several, the survivor and the representatives of one of the deceased debtors cannot be joined in the same action. Mc Vean v. Scott, 46 Barb. 379.

b. In an action upon a joint and several liability In all actions upon a joint and several liability the plaintiff has a right to elect whether he will proceed against the defendants severally, or, treating the obligation as joint, proceed against all jointly in one action. If he elects to treat the liability as joint, and after the action is commenced and before judgment one of the defendants dies, the plaintiff may treat the action as abated as against the deceased defendant, and proceed regularly against the remaining defendants. Gardner v. Walker, 22 How. 405. He should, as a precautionary measure, procure an order directing the action to so proceed. He cannot proceed against the personal representatives of the deceased defendant and the survivors jointly, as a joint verdict or a joint judgment in such a case would be erroneous. But he may have an order reviving the suit against the representatives of the deceased and also against the surviving parties, but not as a joint action. The plaintiff in all such cases must sever the action, and proceed against the survivors and representatives separately from the time of the death of the defendant. An order reviving an action on a joint and several liability will be construed in accordance with this rule. Union Bank v. Mott, 27 N. Y. (13 Smith) 633; Mc Vean v. Scott, 46 Barb. 379; Gardner v. Walker, 22 How. 405. See Fine v. Righter, 3 Abb. N. S. 385.

Section 5. Death of a judgment debtor.

a. In supplementary proceedings. No proceedings supplementary to execution can be commenced or continued after the death of a sole defendant until his representatives are brought in as parties. Hazewell v. Penman, 13 How. 114; S. C., 2 Abb.

230.

Death of a party to an appeal-Civil death- Change, how made.

Section 6. Death of a party to an appeal. In all cases in which an appeal is pending at the time of the death of a sole defendant, the personal representatives of the deceased, having an interest in the judgment recovered, and in the appeal therefrom, are entitled as a right to be made parties to the appeal, whether the judgment appealed from was in favor or against the deceased party, whom they represent. Schuchardt v. Remiers, 28 How. 514; S. C., 1 Daly, 459; Miller v. Gunn, 7 How. 159. See Beach v. Gregory, 2 Abb. 203. When a party to a cause dies after the return is filed in the court of appeals, the court, having obtained jurisdiction, has power to allow the legal representatives of the deceased to be substituted. Hastings v. McKinley, 8 How. 175. The provision of the Code has no application to the substitution of new parties on an appeal to the court of appeals. Ib. Section 7. Civil Death.

a. Effect of civil death on actions pending. A person sentenced to imprisonment in a State prison for life is thereafter to be deemed civilly dead. 2 R. S. 701, § 20 (724). The rights and liabilities of such a person are as entirely gone as though he were actually dead; and his estate may be administered upon in the same manner as if he were actually a corpse. The rules applicable to the abatement and revivor of actions in cases of actual death apply equally to cases of civil death. If the cause of action survive or continue, it may be revived in the name of the personal representatives of the party imprisoned. Freeman v. Frank, 10 Abb. 370.

Imprisonment in a State prison for any term less than life suspends all the civil rights of the person so sentenced, and consequently abates any suit in which such person is plaintiff, so that no further proceeding can be had therein, until the action is properly revived. O'Brien v. Hagan, 1 Duer, 664. But the conviction and sentence of a party defendant to a State prison does not affect an action pending. Davis v. Duffie, 4 Abb. N. S. 478; S. C., 3 Trans. App. 54; 3 Keyes, 606; affirming 8 Bosw. 817; reversing 18 Abb. 360.

Section 8. Change, how made.

a. When an order of revival is the proper remedy. When an action has abated by the death of a party, and the cause of action survives or continues, the proper manner of effecting a change of parties by the substitution of the personal representatives, or successors in interest of the deceased, is by application