Roberts v. Marsen

Rumsey, J.: From the foregoing statement of the case, it is apparent that all the proceedings thus far had in the action, whether regular or [488] irregular, have been had with the full assent, and practically on the motion of the plaintiff, who now, after being finally defeated in this long contested litigation, for the first time asks to have the action dismissed, because, as he insists, it abated by the death of Edward T. Marsen, the original defendant, in January, 1878. If the proceedings of the court in the action, subsequent to the death of Edward T. Marsen, are entirely without jurisdiction, they are void, and this appeal must be sustained, otherwise not. The rule that personal actions die with the person, applies only to actions affecting the person of the parties, as assault and battery, slander, false inprisonment, while all actions affecting the estate of parties are expressly saved from abatement and are reserved to their representatives. (2 R. S., 447, §§ 1 and 2; Haight v. Hayt, 19 N. Y., 474.) The action does not abate in cmy event if the cause of action survive (Code Civ. Proc., § 755), which is but a reenactment of the 121st section of the old Code. This action clearly affects the estates of both the plaintiff and of defendants’ intestate, for under the proceedings in it the plaintiff has obtained possession from the defendants’ intestate, of the property described in the complaint, and the result of the action shows the defendants are entitled to have it returned to them as part of the estate to be administered by them. It was held in the case of Webbers’ Executors v. Underhill (19 Wend., 447), that at common law the action of replevin abated in case of the death of a sole defendant; and apparently without examining into the effect of the provision of ,the Revised Statutes above cited, the court held that the statute authorizing the writ of scire facias, by which only actions could .then be revived, extended only to cases before then known to the jaw, and therefore did not warrant a revival of that action by that means. Byrkle v. Luce (1 Comst., 163) is the case of the death of a sole plaintiff in replevin, and does not bear upon the case under 'consideration; but the proposition is also stated there that it coidd not be revived by sevre facias, and probably for the same reason 'given in the 19th Wend., 447. Both these cases were decided before either of the Codes was adopted; and in view of the provisions of section one of the Revised Statutes before cited, which saves to •the representatives of a party all actions for wrongs done to the property, rights and interests of such party, and of section two, [489] excepting from section one only causes of action peculiar to the person alone, it would seem that the action of replevin is saved from abatement in case of the death of a sole defendant. If it was necessary for the determination of this appeal to decide the question, we should hesitate long before holding that the death of Edward T. Marsen caused.the abatement of the action. The County Court had jurisdiction of the subject-matter of the action, and all the parties to the action were properly before it on the appeal from the Justice’s Court, and when all parties who are to be affected by its proceedings voluntarily submit their rights to its decision, as they did in this case by their stipulations written and filed with the court on two distinct occasions, neither should be allowed to question its action at this late stage of the proceedings except for substantial errors aside from the question of jurisdiction over the person of the defendant. The Court of Appeals practically hold in Cox v. New York Central and Hudson Rimer Railroad Company (63 N. Y., 414), that jurisdiction of the person in an action for injury to the person may by stipulation be conferred upon the court so as to save the action from abatement by the death of a party. (See, also, Arthur v. Griswold et al., 60 N. Y., 143.) It would be unfair to allow the plaintiff to avail himself of the objeetion he now makes unless compelled to do so by some unbending rule of law, and none such exists in this case. The judgment and order appealed from must be affirmed, with costs. Talcott, P. J., and Hardin, J., concur. Judgment and order appealed from affirmed, with costs of appeal.