Agnes K. M. Mulligan, Respondent, v. William J. O'Brien and Others, Appellants

Agnes K. M. Mulligan, Respondent, v. William J. O’Brien and Others, Appellants. First Department, May 10, 1907. Abatement of action — revival of action of conversion against representatives—practice stated. Causes of action for forcible entry and detainer and for assault and battery abate on the,death of the defendant, blit a cause of action for the conversion of personal property does not abate and may be continued against the personal representatives of the deceased defendant. . Where there are codefendants jointly and severally liable in tort and one of them dies, the plaintiff may proceed against the survivors and the representatives - of the deceased defendant at the same time, but it must be by separate actions, and a prior action against.all must be severed. When an action is revived against the personal representatives of the deceased defendant, it is neither necessary nor proper to restate the cause of action in the supplemental complaint, for the former pleadings still stand and the action proceeds upon the issues made by'them. New defenses arising in fav.or of the personal representatives should be set tip by the supplemental answer. Ingraham, J., dissented, with opinion. ' Appeal by the defendants, William J. O’Brien and others, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew ■ York on the 14th day of March, 1907. Henry A. Forster, for the appellants. William G. Mulligan, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: This action was begun. against William J. O’Brien, Charles H. Barson and William G. Barson upon three causes of action; one for forcible entry and detainer; one for assault and battery', and one which appears to be designated as a cause of action for damages-for the conversion of personal property, and which for the purpose of this appeal we shall assumé to be such. William G. Barson has died, and the appellant Mary M. Barson has been appointed and.lias qualified as his executrix. The first and second causes of action have abated, so far as concerns William G. ■ Barson, by his death. The third survives and may be continued against his personal representatives. . The order appealed from severs the action, revives it as to the third cause of action against the executrix and permits the service upon her of a supplemental complaint alleging the death of William Gf. Barson and the appointment and qualification of the appellant as executrix. We think that the order should be affirmed. It was expressly held in Union Bank v. Mott (27 N. Y. 633) that upon the death of one defendant in an action against two. for a tort wherein the- liability was several, the surviving party arid the personal representatives of the deceased party may be proceeded against at the same timé, but that it must be in separate actions, and for that purpose the action must be severed. That rule, which, as it seems, has never been questioned, applies to the present case. It was, therefore, proper to sever the action and to permit the plaintiff to proceed separately against the appellant. The supplemental complaint is in the proper form; When an action is revived against the personal representatives of a deceased defendant it is neither .necessary nor proper to restate in the supplemental. complaint the cause of action, for the former pleadings still stand and the action proceeds upon the issues made by them. If facts have arisen, which would give the personal representative defenses which were not available to him whom she succeeds, leave should be obtained to set those facts up in a supplemental answer. (Flannery v. Sahagian, 109 App. Div. 321.) It is true that under the order appealed from the action will apparently be revived as to all three causes of action against the appellant. If as to any of them the death of her testator has worked an abatement, and they are of such a nature that they do not survive, her remedy is to set up the fact of that death by a supplemental answer. The order should be affirmed, with ten dollars costs and . disbursements: Patterson, P. J., Laughxin and Clarke, JJ.,„ concurred; Ingraham, J., dissented. [DISSENT — Ingraham, J.] Ingraham, J. (dissenting) : The order appealed from directs a severance of these three causes of action' so. that the action should be continued, against the two ... present defendants as to the first and second causes of action, it haying abated by the death of the third defendant as to the first two causes of action. It revives the third cause of action as to the executrix of the deceased defendant, and directs that that action be continued as against the executrix alone. As the third cause of action survived, it was quite proper to revive it as against the personal representatives of the deceased defendant; but I think the third cause, of action as against all the defendants should be severed from the first two causes of action. The third cause of action survived as against the personal representatives of the deceased defendant, and thus the third cause ' Of action would continue as a.n independent action as against the two original defendants. and the personal representatives of the deceased defendants, the action in relation to the first two causes of action to continue against the present defendants. Under the order as it stands the third cause of action would be enforced against these two defendants in one action, and the personal representatives of the deceased defendant in another action. I do not understand that that is allowed. I think the order should be modified by directing the -severance of the third cause of action from the first and second causes of" action, this action to continue as a first and second cause of action, and the plaintiff to be allowed .to serve a supplemental summons and complaint bringing "in the personal representatives of the deceased defendant in the severed action, and that cause of action to continue as an independent action against these two surviving defendants and the personal representative of the deceased defendant. The order should be modified accordingly, without costs of this appeal. Order affirmed, with ten dollars costs and disbursements.