Bennett v. Thompson

We think the court below had power to grant the motion. His authority to do so seems unquestionable, since the decision of the court of appeals in Schell v. Devlin, 82 N. Y. 333. In that case the motion was not granted, as counsel for appellants suggests, under the provisions of section 1298 of the Civil Code, no appeal having been taken, and the authority seems directly in point. It is difficult to see what interest the personal representatives of the deceased plaintiff had in the motion. The assignment by plaintiff, previous to his death, to the moving party, was clearly proved, and was not denied by appellants. In the absence of a denial of the assignment, there was no necessity of giving any notice to the personal representatives of the deceased plaintiff. As Judge Andrews remarks in Schell v. Devlin, supra, “The interest of the appellants in the question is that the person substituted should be the real owner of the claim, or, if not, that the real claimant shall be concluded by the order.”

The court below, in his discretion, overruled the objection of defendants to the motion on account of loches, and we see no reason to overrule his ruling in that regard. The plaintiff died a few days after the assignment, and defendants did not satisfactorily show any injury to them resulting from the delay. The order should be affirmed, with costs and disbursements. All concur.