Mayor of New York v. White

59 F. 617, 1893 U.S. Dist. LEXIS 181

Opinion

BROWN, District Judge.

An examination of the libel, filed January II, 187Í, shows that it was brought for a collision between the steamboat Araericus, then belonging to the defendant, R. Cornell White, and the libelant’s steam propeller Hope, used by the department of public charities and correction.

The process was in rem against the vessel, and in personam against the owner. The vessel was arrested, and released on stipulation. The defendant in personam answered, among other things, that he was improperly joined as a defendant. The owner after-wards died; his executor qualified in 1881, and was discharged by the surrogate in 1886. The libelant now moves that the action be revived as respects the personal defendant, by bringing in his executor. Had the joinder of the defendant in personam been excepted to after the arrest and release of the vessel in rem, the exception would have been sustained, as sucii a joinder is not allowed by the rules of the supremo court in an action for collision. This is a sufficient reason, aside from the discharge of the executor long since, why no order for the revival of the action as against any executor should he allowed. The ad ion in rem can proceed upon notice to the former executor and to the sureties, unless on their motion it be dismissed for laches and want of prosecution.