Orser v. Glenville Woolen Co.

New York Supreme Court

Orser v. Glenville Woolen Co.

11 Abb. Pr. 85

DecidedSeptember 15, 1870

StatusPublished

This text of 11 Abb. Pr. 85 (Orser v. Glenville Woolen Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Orser v. Glenville Woolen Co., 11 Abb. Pr. 85 (N.Y. Super. Ct. 1870).

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Opinion

Ingraham, J.

The plaintiff in this case died during the term at which this case was tried, and judgment was entered as of the first day of the term. A motion is now made to continue the action.

By section 133 of the Code of Procedure it is provided that in case of death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest. The sheriff has, as such, no representative, except it be his deputy. In the present case the deputy also is dead.

It may also be doubted whether the claimant for whose benefit the action is brought can be called the successor in interest. He does not succeed to any interest of the sheriff after his death. His rights remain the same after death of the sheriff as they were before, and are not in any way to be considered as belonging to him as successor in interest.

I am of the opinion that this section does not provide the remedy for the difficulty. There is, however, a provision in the Revised Statutes which meets this case (2 Rev. Stat., 388, § 14; 5 ed., vol. 3, p. 670). “ When an action is authorized or directed by law to be brought in the name of a public officer,” &c., “his death or removal shall not abate the suit, but the same may be continued by Ms successor, who shall be substituted for that purpose by the court, and a suggestion of such substitution shall be entered on the record.”

This applies to such a case as the present, and the plaintiff’s attorney may take an order to continue the action in the name of the successor in office of the plaintiff.

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Ingraham, J.

The plaintiff in this case died during the term at which this case was tried, and judgment was entered as of the first day of the term. A motion is now made to continue the action.

By section 133 of the Code of Procedure it is provided that in case of death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest. The sheriff has, as such, no representative, except it be his deputy. In the present case the deputy also is dead.

It may also be doubted whether the claimant for whose benefit the action is brought can be called the successor in interest. He does not succeed to any interest of the sheriff after his death. His rights remain the same after death of the sheriff as they were before, and are not in any way to be considered as belonging to him as successor in interest.

I am of the opinion that this section does not provide the remedy for the difficulty. There is, however, a provision in the Revised Statutes which meets this case (2 Rev. Stat., 388, § 14; 5 ed., vol. 3, p. 670). “ When an action is authorized or directed by law to be brought in the name of a public officer,” &c., “his death or removal shall not abate the suit, but the same may be continued by Ms successor, who shall be substituted for that purpose by the court, and a suggestion of such substitution shall be entered on the record.”

This applies to such a case as the present, and the plaintiff’s attorney may take an order to continue the action in the name of the successor in office of the plaintiff.

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Bluebook (online)

11 Abb. Pr. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orser-v-glenville-woolen-co-nysupct-1870.