AMORÉ v. LA MOTHE

AMORÉ v. LA MOTHE. N. Y. Superior Court; Special Term, September, 1878. Attorney and Client. — Death oe Plaintive. — Supplementary Proceedings. Upon the death of the plaintiff in the judgment, the attorney who recovered the same has no power, as such, to institute proceedings supplementary to execution. The death of the party ends the authority of the attorney. Proceedings thereafter must be taken in the name, and by the direction, of the personal representives, or successors in interest of the deceased plaintiff. Motion to set aside supplementary proceedings and a settlement made thereon. The action was brought by Lambert Amoré against Bernard J. La Mo the, and judgment was recovered in 1866, upon which execution was immediately issued, and no other execution was afterwards issued, nor was leave to issue one granted. The plaintiff died about two years after the judgment was obtained, and no letters upon his estate were ever granted. In June, 1878, the attorney of record for plaintiff obtained upon his affidavit, the usual order for examination of defendant as a judgment debtor in supplementary proceedings. Defendant called at the attorney’s office before the return-day; sundry adjournments were had; and defendant finally gave him certain corporate stock as collateral security for the payment of an acceptance of said corporation, given by defendant in settlement of the judgment. Defendant moved, upon an order to show cause, to have the supplementary proceedings set aside as null and void and to compel the attorney to restore and deliver up the stock and acceptance received by him in settlement thereunder. The latter filed an affidavit claiming to own one-half of the judgment and to represent the widow and child of the deceased plaintiff, and also produced on the argument a letter from the public administrator stating that said public administrator has applied for letters upon plaintiff’s estate, and directing him to hold any property of the plaintiff in his possession. Further facts appear in the opinion. Charles W. Dayton, for the motion. Nathaniel Niles, opposed. [MAJORITY — Vaw Vorst, J.] Vaw Vorst, J. The objections on the part of the defendant to the proceedings taken under the judgment, which led to the settlement of which complaint is made, are substantial and valid. The judgment was recovered in 1866, and an execu tion was at once issued thereon, and returned unsatisfied. After the recovery of the judgment, and more than ten years ago, the plaintiff died. The attorney who recovered the judgment made the affidavit upon which the order for the defendant’s examination in proceedings supplementary to execution was obtained from one of the judges of this court. In the affidavit he swears “ that he is the attorney for the above plaintiff.” The death of the plaintiff is not suggested, yet his death revoked the authority of the attorney (Putnam v. Van Buren, 7 How. Pr. 31; Billinger v. Ford, 21 Barb. 311; Austin v. Monroe, 4 Lans. 67). Proceedings supplementary to execution are proceedings in the action (Seeley v. Black, 35 How. Pr. 369). As long as the judgment remained unsatisfied the action was pending (Wegman v. Childs, 41 N. Y. 159). After the plaintiff’s death all proceedings in the action must be taken in the name of his representatives or successors in interest (Code, § 757). At the time of the institution of the supplementary proceedings, no steps had been taken for the appointment of an administrator of the deceased creditor. It follows that there was no person properly authorized to take the proceedings or make a settlement of the claim. In answer to this objection the attorney claims to be “the one half owner of the judgment.” When or in what manner he succeeded to such interest is not stated. But the proceeding was neither instituted nor settled upon the basis of an interest in any one, other than the plaintiff on the record, and the receipt given for the property received towards paying the judgment, is executed by him as “ attorney for the plaintiff.” It must be held that the proceedings were unauthorized and void. The adjournments consented to by the defendant, who is a foreigner, and unacquainted with legal proceedings, can give no validity to the order, nor uphold the settlement. The settlement of the claim by a draft and stocks delivered to the attorney, under the circumstances disclosed, would afford no protection to the defendant, against the claims of those legally interested in the judgment, appearing by the record, and the proceedings thereon. The proceedings and settlement are set aside, and the property should be redelivered to the defendant.