Lawson v. L. R. Mack, Inc.

246 A.D. 622, 282 N.Y.S. 982

Opinion

Order substituting an administrator for the deceased plaintiff, directing the continuance of the action in the name of the administrator as plaintiff, and permitting service of an amended complaint reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The action was brought in the name of plaintiff to recover damages for the alleged illegal sale of an automobile which defendant repossessed from said plaintiff pursuant to a conditional sale agreement. The plaintiff died prior to service of the summons. A deceased person cannot be a party to an action at law, and no action was, therefore, legally commenced. Since the court never obtained jurisdiction of the action, the defendant could not by any allegation of the answer, or by failing to raise any jurisdictional question, waive the right to challenge the court’s lack of jurisdiction. The proposed action is one to recover damages under section 80-e of the Personal Property Law, based not upon a fixed penalty, but upon the statutory right to recover damages to be determined. The right of action, therefore, survives the death of the named plaintiff, whose administrator has the right to sue in his representative capacity. Lazansky, P. J., Scudder, Tompkins, Davis and Johnston, JJ., concur.