Mackey v. Duryea , 22 Abb. N. Cas. 284 ( 1889 )

Barrett, J.

I see no way of avoiding the necessity for a supplemental

summonsandcomplaintagainsttherepresentativeof II.B.Duryea. Section757 of the Code applies only to the case of the death of the sole plaintiff or sole defendant, (Coit v. Campbell, 82 N. Y. 509,) and I find no other provision for the bringing in of representatives of deceased defendan ts, generally, on motion. Sections 758 and 759 only apply to cases where the entire cause of action, or part of the cause of action, survives against the survivor of two or more defendants. Section 760 only applies to a case specified in these preceding sections. Here the cause of action has not survived against the other defendants in whole or in part, and it was necessary, notwithstanding these sections, to bring in H. B. Dnryea’s representatives. Being so necessary, the proper procedure must be taken, and, as no motion in such case is authorized, the plaintiff must resort to a supplemental summons and complaint. The trust company should also be made a party. It was appointed trustee generally under the order of the court, and not of a particular fund. The cause must stand over for these purposes. This is the first time that the subject has received my deliberate consideration, and I confess that the ruling made at the call of the special term calendar was hasty. It is better for the plaintiff, too, in view of the complex naturel of this cause, and the great delay which has taken place, to move carefully, and to avoid all doubtful procedure.