MacLean v. Hart

Rhodes, J. The defendant heretofore appealed to this court from a judgment rendered against him in an action brought by John E. MacLean, as executor, etc., of Margaret Churchill, deceased. On March 17, 1932, a decision was rendered reversing said judgment. (235 App. Div. 752.) Thereafter and on the 12th day of May, 1932, on motion of plaintiff, respondent, reargument of said appeal was granted and said case was ordered to be resubmitted at said term of court on printed briefs without oral argument. (Id. 885.) The respective parties resubmitted the case prior to the 25th day of May, 1932, which was the last day for the hearing of arguments at said term. Thereafter and on May 28, 1932, John E. MacLean, said plaintiff, respondent, died, before the decision of this court on said reargument was announced. Later, and on November 25, 1932, the decision of this court was handed down which followed substantially the terms of the former decision reversing the judgment in favor of the plaintiff, said decision containing the direction that “ findings and order to be settled before Hinman, J.” (236 App. Div. 873.) Alice MacLean, the widow of said John A. MacLean, was appointed executrix of his will on December 20, 1932. Upon the application of the said Alice MacLean, as executrix of the will of said John E. MacLean, who was the sole residuary legatee under the will of said Margaret Churchill, the said Alice MacLean was, on the 9th day of January, 1933, appointed administratrix c. t. a. of said Margaret Churchill, deceased, and on the 18th day of January, 1933, said administratrix c. t. a. was, on the stipulation of the respective parties, upon order made and entered, substituted as the plaintiff in this action in the place and stead of said John E. MacLean as executor. Plaintiff now asserts that the decision of this court on November 25, 1932, nunc pro tunc, is void because made after the death of the then plaintiff and before any substitution of parties had been ordered. Section 478 of the Civil Practice Act provides in part that “ a judgment shall not be entered against a party who dies before a verdict, report or decision is actually rendered against him. . In that case, the verdict, report or decision is void.” The part l thus quoted is a re-enactment of former section 765 of the Code I of Civil Procedure and has no application to. appeals, but applies ¡ only to the original action. (Riley v. Gitterman, 24 Abb. N. C. 89.) , (See, also, Hastings v. McKinley, 8 How. Pr. 175.) J [3] Section 578 of the Civil Practice Act has no application here because it establishes the proceeding to be taken when a party-dies before the appeal is heard. In the matter before us the appeal was heard before the death of the then plaintiff. Plaintiff’s attorney asserts that section 84 of the Civil Practice Act furnishes the correct procedure for the situation in this case. That section, so far as material, provides: “ § 84. Proceedings when sole party dies and action survives. In case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court, upon a motion, must allow or compel the action to be continued by or against bis representative or successor in interest. * * *.” This section, however, does not furnish the answer to the question now presented. When the parties submitted their case to the court on reargument, they then had their day in court and it was competent for the court thereupon to render its decision immediately, without other or further notice to the parties. The rule has been stated as follows in Bergen v. Wyckoff (1 Civ. Proc. 1, at p. 7): “ ‘ When an appeal has been brought to argument, heard, and submitted to the court for determination, it is competent and proper, in conformity with the well-settled practice heretofore prevailing, that the court should award judgment (if need be), as of the day on which the cause was in fact submitted to them, or of any subsequent day before the death of the defendant.’ ” (Beach v. Gregory, 2 Abb. Pr. 206; affd., 3 Abb. Pr. 78; S. C. sub nom. Beach v. Raymond, 1 Hilt. 201; Wood v. Keyes, 6 Paige Ch. 478.) In courts of equity it is the practice, when a party dies after a cause has been submitted upon the final hearing, for the court, notwithstanding, to go on and render its decision, and direct a final decree to be entered up as of the day when the cause was submitted for decision. (Reed v. Butler, 11 Abb. Pr. 128; Campbell v. Mesier, 4 Johns. Ch. 334; Wood v. Byington, 2 Barb. Ch. 387; Carter v. Beckwith, 82 N. Y. 83; Matter of Beckwith, 87 id. 503.) It is true that at common law when a sole party to an action at law died, before trial, the action abated and there was no way to revive or continue it. (Matter of Palmer, 115 N. Y. 493.) But even in an action penal in its nature, where the death of a party occurred after a judgment entered upon a verdict, the cause of action was merged in the judgment and then became property with all the attributes of an action ex contractu and the courts still had control of the action for the purpose of consideration on appeal. (Carr v. Rischer, 119 N. Y. 117.) (See, also, Blake v. Griswold, 104 id. 613; Mackay v. Rhinelander, 1 Johns. Cas. 408; Springsted v. Jayne, 4 Cow. 423; Ryghtmyer v. Durham, 12 Wend. 245; [4] Spalding v. Congdon, 18 id. 543; Gurney v. Parks, 1 How. Pr. 140; Crawford v. Wilson, 4 Barb. 504; Ehle v. Moyer, 8 How. Pr. 244; Miller v. Gunn, 7 id. 159; DeAgreda v. Mantel, 1 Abb. Pr. 130.) This action is in equity, having been brought for an injunction and to set aside a contract made between Margaret Churchill, plaintiff’s testatrix, and the defendant. Under the rule above referred to relative to equity cases, the court, therefore, had power to render its decision herein, the case having been fully submitted to the court prior to the death of the then plaintiff. As already stated, it was competent for the court to render its decision and make its findings without a further hearing as to the parties, and it was, therefore, unnecessary, except as a matter of convenience, to direct findings to be settled before Hinman, J. Pursuant to its decision the court has now made findings which appear to have been entered, together with the judgment based thereon. It appearing that the court had power thus to render its decision, make findings and cause judgment to be entered nunc pro tunc, plaintiff’s application should be denied, with ten dollars costs and disbursements to the defendant. Hill, P. J., and Crapser, J., concur; McNamee, J., dissents, with an opinion; Bliss, J., concurs in the result reached by McNamee, J., both upon his opinion and the authorities cited therein, and also upon the authority of Stokes v. Carpenter (165 App. Div. 926).