Mulligan v. O'Brien , 104 N.Y.S. 301 ( 1907 )

Scott, J.:

This action was begun. against William J. O’Brien, Charles H. Barson and William G. Barson upon three causes of action; one for forcible entry and detainer; one for assault and battery', and one which appears to be designated as a cause of action for damages-for the conversion of personal property, and which for the purpose of this appeal we shall assumé to be such.

William G. Barson has died, and the appellant Mary M. Barson has been appointed and.lias qualified as his executrix. The first and second causes of action have abated, so far as concerns William G. ■ Barson, by his death. The third survives and may be continued against his personal representatives.

. The order appealed from severs the action, revives it as to the third cause of action against the executrix and permits the service upon her of a supplemental complaint alleging the death of William Gf. Barson and the appointment and qualification of the appellant as executrix. We think that the order should be affirmed. It was expressly held in Union Bank v. Mott (27 N. Y. 633) that upon the death of one defendant in an action against two. for a tort wherein the- liability was several, the surviving party arid the personal representatives of the deceased party may be proceeded against at the same timé, but that it must be in separate actions, and for that purpose the action must be severed. That rule, which, as it seems, has never been questioned, applies to the present case.

It was, therefore, proper to sever the action and to permit the plaintiff to proceed separately against the appellant. The supplemental complaint is in the proper form; When an action is revived against the personal representatives of a deceased defendant it is neither .necessary nor proper to restate in the supplemental. complaint the cause of action, for the former pleadings still stand and the action proceeds upon the issues made by them. If facts have arisen, which would give the personal representative defenses which were not available to him whom she succeeds, leave should be obtained to set those facts up in a supplemental answer. (Flannery v. Sahagian, 109 App. Div. 321.) It is true that under the order appealed from the action will apparently be revived as to all three causes of action against the appellant. If as to any of them the death of her testator has worked an abatement, and they are of such a nature that they do not survive, her remedy is to set up the fact of that death by a supplemental answer.

The order should be affirmed, with ten dollars costs and . disbursements:

Patterson, P. J., Laughxin and Clarke, JJ.,„ concurred; Ingraham, J., dissented.