ORSER against THE GLENVILLE WOOLEN COMPANY

ORSER against THE GLENVILLE WOOLEN COMPANY. Supreme Court, First District; Special Term, September, 1870. Abatement.—Action by Sheriff.—Substitution of Successor. Where a sheriff dies pending an action prosecuted in his name under section 338 of the Code, it is not proper to substitute his personal representatives nor the claimant for whose benefit the action is brought, but the successor in office of the sheriff should be substituted under 2 Rev. Stat., 388, § 14. Motion to have action continued. This action was brought in the name of John Orser, late sheriff of the county of New York, against the Glenville Woolen Co., Joseph Ripley, Alexander J. Cameron, and Joseph H. Isham. The facts of the case are given in Andrews v. Glenville Woolen Co. (ante, p. 78). After the decision there given, Cousinery & Craig, having given security to the sheriff under section 338 of the Code of Procedure, caused the present action to be commenced for the same purpose as the one there prosecuted. The case came to trial on May 9,1870, and having been heard, the judge reserved his decision. On May 15, 1870, John Orser died, and Willett, who had been his deputy while he was sheriff, and who had succeeded to the office on the expiration of Orser’s term, was already deceased, having died in 1866 or 1867. On May 30, 1870, the judge delivered his decision in favor of the plaintiff, and directed the judgment to be entered nunc pro tunc, as of May 9, 1870, when the cause was heard. A motion was now made that the action should be continued in the name of the present sheriff. [MAJORITY — Ingraham, J.] Ingraham, J. The plaintiff in this case died during the term at which this case was tried, and judgment was entered as of the first day of the term. A motion is now made to continue the action. By section 133 of the Code of Procedure it is provided that in case of death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest. The sheriff has, as such, no representative, except it be his deputy. In the present case the deputy also is dead. It may also be doubted whether the claimant for whose benefit the action is brought can be called the successor in interest. He does not succeed to any interest of the sheriff after his death. His rights remain the same after death of the sheriff as they were before, and are not in any way to be considered as belonging to him as successor in interest. I am of the opinion that this section does not provide the remedy for the difficulty. There is, however, a provision in the Revised Statutes which meets this case (2 Rev. Stat., 388, § 14; 5 ed., vol. 3, p. 670). “ When an action is authorized or directed by law to be brought in the name of a public officer,” &c., “his death or removal shall not abate the suit, but the same may be continued by Ms successor, who shall be substituted for that purpose by the court, and a suggestion of such substitution shall be entered on the record.” This applies to such a case as the present, and the plaintiff’s attorney may take an order to continue the action in the name of the successor in office of the plaintiff.