Opinion
May 2, 1906.
Henry F. Lippold, for the appellant.
Rockwood Salisbury [ John A. Slade of counsel], for the respondent.
The action is brought against two indorsers upon a promissory note; that is, two indorsers only were served. One of the indorsers, Frederick W. Bergstein, died. By the order appealed from, upon the application of the plaintiff, his executrix has been substituted.
The substitution seems clearly to be authorized by section 760 of the Code of Civil Procedure. (See, also, Douglass v. Ferris, 138 N.Y. 207; Eaton v. Alger, 47 id. 345.)
Appellant insists, however, that she could only be brought in by an order requiring that she be served with supplemental summons and complaint under section 760 of the Code of Civil Procedure. By section 121 of the Code of Procedure it was provided that no action should abate by death if the cause of action survive, and further: "In case of death, marriage, or other disability of a party, the court on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest." By section 757 of the Code of Civil Procedure this provision was thus modified: "In case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a supplemental summons and complaint, or, in its discretion, upon a motion, if made within one year after the decedent's death, in a proper case, allow or compel the action to be continued, by or against his representative, or successor in interest." (Laws of 1876, chap. 448, § 757, as amd. by Laws of 1877, chap. 416.) Throop, in his note, after giving the source of this section as section 121 of the Code of Procedure, says: "The second sentence amended, so as to make the supplemental summons and complaint the primary means of reviving the action, as there is no means provided for serving an order without the State, whereas service of a supplemental summons is fully provided for by § 453." (Throop's N.Y. Code Civ. Proc. [1877 ed.] § 757, note.) By chapter 542 of the Laws of 1879 section 757 of the Code of Civil Procedure was amended so as to read as follows: "In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative, or successor in interest." It will be seen that by the amendment of 1879 there was left out of the provision as amended the alternative right to allow the action to be continued by the service of a supplemental summons and complaint. The reason of this omission is explained by the amendment in the same statute of section 760 of the Code of Civil Procedure by which was inserted at the beginning of that section the following words: "In a case specified in the foregoing sections of this title." So that section 760 now refers to section 757, which provides for the death of a sole plaintiff or a sole defendant, or section 758, which provides for the death of one of two or more plaintiffs or defendants. By section 758 (as amd. by Laws of 1877, chap. 416) provision seems to be made for an order to bring in the representatives of a deceased party in an action where one of two or more plaintiffs or defendants dies. The direction that they may be brought in by an order seems to be substantially similar to the case of the death of a sole plaintiff or a sole defendant as provided by section 757. Section 760 seems to be supplemental to the provisions of sections 757 and 758 and provides in the case of a sole defendant or of one of two or more defendants that if the application be made on the part of the plaintiff "the court may direct that a supplemental summons issue, and that supplemental pleadings be made." The object of a supplemental summons, as seems to be explained in Throop's note to section 757, is simply to reach non-resident defendants upon whom an order could not be served out of the State. By that section, as first amended in 1877, within the first year the plaintiff was permitted to revive his action either by an order of continuance or by a supplemental summons. Considering the purpose to be accomplished by the service of a supplemental summons as thus stated by Mr. Throop, and the history of the legislation upon this question, I cannot believe that it was intended to make a supplemental summons necessary in all cases where you would revive an action against a defendant. That by section 760 it was not intended to provide an exclusive method of reviving an action is apparent from the provisions thereof made in case application be made by a defendant. In case of his application it is provided that the court may and in certain cases must permit the defendant to bring a cross action. It will hardly be contended that an action can only be revived by a defendant by a cross action to be brought by him. Certainly in most cases the court has the right by an order to revive an action at the instance of a defendant. But this provision only clarifies the meaning of the whole section. By sections 757 and 758 actions may be revived at the instance of a plaintiff or defendant by order. If the parties to be brought in are non-residents, however, upon whom an order cannot be effectively served out of the State, section 760 permits a supplemental summons to be issued at the instance of a plaintiff or a cross action to be commenced at the instance of a defendant by which the court may acquire jurisdiction of the absent parties. This view would seem to be supported by the authority of Palen v. Bushnell (51 Hun, 423), which case arose after the amendment of 1879 to section 757. The order should, therefore, be affirmed.
All concurred, except PARKER, P.J., not voting.
Order affirmed, with ten dollars costs and disbursements.