Union Bank v. . Mott , 27 N.Y. 633 ( 1863 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendants' counsel insists that the original defendants were charged upon a joint liability, which survived against Garret S. Mott only, on the death of his co-defendant, and that the action could not, for that reason, be revived against the representative of the deceased defendants. If the action were founded upon the joint liability of the defendants arising out of an implied contract on their part to return the money wrongfully obtained by them, which is the usual form of action in such cases, the position of the defendants' counsel would be correct. (Voorhees v. Childs' Executor,17 N Y, 354.) The plaintiff's counsel, however, insists, and I think, correctly, that the basis of the action is tort and not contract, express or implied; that its object is not to recover for money had and received by the defendants to the plaintiff's use (thus waiving the tort), but to obtain judgment for the damages which the plaintiff has sustained through the fraudulent conduct of the defendants. This being the true foundation of the action, and all torts, committed by more than one person, furnishing several as well as joint causes of action, the right of action survived, as well against the personal representative of the deceased, as against the surviving defendant. The surviving wrongdoer could not, however, in a common law action to recover damages, be joined with the representatives of his deceased associate, for the reason that there is no joint liability, and neither the same judgment could be rendered, nor the same execution issued, against both. The Code, I think, has made no change in this respect. It has not authorized, in actions merely personal, for the recovery of money only, the joinder of defendants primarily and personally liable, with others liable only in a representative capacity. (Gardner v. Walker, 22 How. Pr., 405; Voorhees v. Childs' Executor, 17 N.Y., 355.) Where parties are jointly and severally liable, either for torts, or upon contracts, the personal representatives of deceased parties may be proceeded against by action at the same time with actions against the surviving parties, but it must be by separate actions, and not by joining both classes of defendants in one action; and on the decease of one of several defendants thus liable in a pending action, such action cannot be revived, as a joint action, against the surviving parties and the representatives of the deceased party. I can, however, see no objection to the revivor of the suit in such case, as against the representatives of the deceased party as a separate action, as was suggested by Mr. Justice WELLES, in Gardner v. Walker, supra. Such is undoubtedly the appropriate course on the death of a party severally liable on a bill or note, joined with other parties, as defendants under sec. 120 of the Code of Procedure; and there would seem to be great propriety in extending that practice to all cases of joint and several liability. Section 121 of the Code may properly be held to justify that course. Thus far I have deemed it proper to consider the merits of the question involved in the appeal, the subject having been discussed by counsel, although the merits are not before the court on this motion.

The papers do not disclose the grounds upon which the Supreme Court denied the plaintiff's motion; but, assuming it to have been held by that court that there could be no revivor of the action as a joint one against Garret S. Mott and the representatives of Jacob H. Mott, they must have regarded the motion made in the action against the surviving party, as irregular. The papers were served on the attorney of Garret S. Mott only, no service having been made on the executrix of Jacob H. Mott. The motion, therefore, was made against Garret S. Mott, in an action in which the petitioner was the plaintiff, and he alone was defendant, for leave to revive a separate action in favor of the same plaintiff against another defendant. In that question, Garret S. Mott had no interest. He was no proper party to the proceeding, and if the order asked for had been granted, it would have been entirely nugatory. The denial of a motion, under such circumstances, presents no question which can be reviewed in this court. It in no way affected the substantial rights of the appellant, which would have gained nothing if the motion had been granted, and has lost nothing by its denial. If the right existed, as I am inclined to think it did, to revive the action against the executrix of Jacob H. Mott, that right remains wholly unaffected by the decision which was made in the court below. The appeal should, therefore, be dismissed, with costs.

Ordered accordingly.