Opinion
June Term, 1901.
Maxwell Evarts, for the appellants.
Herbert Barry, for the respondent.
The cause of action survived and the action did not abate by the death of the parties. (Code Civ. Proc. § 755; Holsman v. St. John, 90 N.Y. 461.)
Foreign executors or administrators may assign a cause of action, and an action to enforce the same may be maintained in the courts of this State by the assignee. ( Petersen v. Chemical Bank, 32 N.Y. 21; Guy v. Craighead, 6 App. Div. 463. ) Counsel for appellant, while not questioning the doctrine of these cases, contends upon the authority of Rogers v. Adriance (22 How. Pr. 97), a Special Term decision made in 1861 under section 121 of the Code of Procedure, that an action can only be revived in favor of an executor, administrator or heir, and not in favor of the assignee of the executor or administrator of a deceased party.
The question hinges upon the proper construction of the first sentence of section 757 of the Code of Civil Procedure, which is a re-enactment of a similar provision of section 121 of the Code of Procedure, and reads as follows:
"In case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest."
We see no reason for placing a narrow technical construction on this statute. The foreign executors or administrators would have the right, upon taking out ancillary letters in this State, to be substituted as plaintiffs. We know of no law that would then prohibit their assigning the cause of action to Spencer, and the court might then substitute him as plaintiff. (Code Civ. Proc. § 756.) A construction which authorizes the assignment of the cause of action by the foreign administrators or executors without requiring that the action be first revived in their names can affect no vested right of the defendant, and will enable the settlement of the estate of such deceased parties without awaiting the result of protracted litigation in foreign jurisdictions. An assignee of the administrator of a deceased party plaintiff is the "successor in interest" of such deceased party within the intent and meaning of this provision of the Code, and it has been so held in a similar case in the General Term of this department. ( McLachlin v. Brett, 27 Hun, 18.) An appeal in that case was dismissed by the Court of Appeals without opinion ( 90 N.Y. 653). If the Legislature intended to confine the revival of an action in such case to the immediate successor in interest of the deceased party, we think more appropriate words would have been employed to express that meaning.
We are of the opinion, therefore, both upon principle and upon authority, that the assignee of the foreign executor or administrator of a deceased party plaintiff may revive and continue the action in his own name.
It is further objected that the order is invalid in not requiring the bringing in of the personal representative of Crocker, and directing the continuance of the action against her also as defendants. Such administrators would not be bound by the proceedings already had in the action. The plaintiff was entitled to the benefit of such proceedings, including the evidence presented to establish his case. We deem this objection, therefore, untenable.
The order should be affirmed, with ten dollars costs and disbursements.
PATTERSON, INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.