Burnham v. Brennan

Truax, J. This is a motion made by Mrs. Brennan, administratrix of Matthew T. Brennan, deceased (the late sheriff), to revive the above action. The action is one of replevin brought against the late sheriff. It was tried on the 22d day of ¡November, 1875, and resulted'in a verdict for the defendant. Appeals were taken, and on the 23d day of May, 1878, the court of appeals reversed the judgment and ordered a new trial. Mr. Brennan died on the 20th day of January, 1879. Prior to the 1st day of September, 1880, on which day the last nine chapters of the Code of Civil Procedure took-effect, an action of replevin rebated by the death of the sole defendant, and could not be revived by or against Ms representatives. It could, however, be revived by or against the representatives of the plaintiff (See Lahey agt. Brady, 1 Daly, 443; Hopkins agt. Adams, 6 Duer, 685; Burkle agt. Luce, 1 N. Y., 163; Heinmuller agt. Gray, 2 Y. & S., 196; Potter agt. Van Vranken, 36 N. Y., 619). Section 1736 of the Code of Civil Procedure provides that: “ In an action to recover a chattel, the cause of action survives or continues, notwithstanding the death of either party, in favor of or against his executors or administrators.” The plaintiff contends that this section applies only to actions in which the sole defendant was living on the 1st day of September, 1880; while, on the other hand, [311] the defendant contends that the section affects a remedy and not a right, and is retroactive. Section 3352 of the Code of Civil Procedure declares that “ nothing contained in any provisions of this act * * * renders it ineffectual or otherwise impairs * * * any right, defense or limitation lawfully accrued or established before the provision in question takes effect, unless the contrary is expressly declared in the provisions in question.- As far as it may be necessary for the purpose of * * * enforcing or protecting such a right, defense or limitation, the statutes in force on the day before the provision takes effect are deemed to remain in force notwithstanding the repeal thereof.” Section,755 and 757 of the Code of Civil Procedure limit the powers of the courts to revive an action to eases in which the cause of action survives. The motion must be denied, with ten dollars costs.