Cheney v. Rankin

The cause of action, stated in the complaint in the. -case of Cheney against Cheney and others, survived. As the cause of action survived, the action itself did not abate. Code Civ. Pro., .§ 755.

Section 757 of the Code of Civil Procedure provides: “ In case of the death of a sole plaintiff * * * 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.”

Phcebe A. Cheney died intestate, and her children, Edward D. ■Cheney and Carrie P. Bankin, were her successors in interest. Warner C. Bankin purchased of Carrie P. Bankin her interest in •said premises and became the successor in interest of the plaintiff to the extent of such share.. McLachlin v. Brett, 27 Hün, 18; Schlichter v. S. Brooklyn Saw-Mill Co., 35 Hun,-339; Robinson v. Brisbane, 7 Hun, 180.

The only case of which I am aware holding that a grantee of ¡an heir-at-law is not a successor in interest of the intestate, is thp •ease of Rogers v. Adriance, 22 How. Pr. 97. The opinion in that *612case erroneously construed the provisions relating to the revivor of actions and is overruled by the later cases that I have cited above. Warner C. Rankin being a successor in interest to the plaintiff in the first action is on application to the court entitled, as a matter of right, to an order reviving that action, and such right can only he defeated by his laches. Code Civ. Pro., § 757; Crowley v. Murphy, 33 App. Div. 456.

It has not been suggested that the defendant Rankin in this action has been guilty of laches that would defeat an application, by him for the revivor of the first action, and, in any event, the first action is actually pending until it is discontinued by act of the parties or abated in the manner provided by section 761 of the Code of Civil Procedure; Albert E. Grant, defendant in the first action, and omitted in this action, was an unnecessary defendant. Samuel 0. Gleason, a defendant in the first action, and omitted in this action, is omitted by reason of the fact that the interest alleged to be in him under the complaint in the first action, has been settled and released to other parties to this' action. Edward D. McGraw and Rollin C. Reynolds, defendants in the first action, were made-such as tenants, and now have no interest in the property. The former action was regularly brought; all the parties interested in the property were actually before the' court .and the case had proceeded to a reference when the plaintiff died. The parties to the-first action and their successors in interest are entitled to the benefits of the proceeding already, had and expenses incurred in that action. The proceedings in that action should continue after a revival' as though the persons succeeding to the plaintiff’s interest had been in the action from the beginning. The successors in interest of Phoebe A. Cheney took their interest subject to all incumbrances, including the notice of pendency of the action of partition. The same title is involved in both actions. The purpose of the actions respectively is the partition and sale- of the real estate described and the distribution of the proceeds thereof among the-parties entitled thereto. In the first action an accounting was demanded from Edward C. Rankin of the rents and profits of the-real estate. The successors in interest of Phoebe A: Cheney, are entitled to a' revivor of the action as far as it related to thq partition, of the real estate-without reference to the accounting for rents and. profits. Hoffman v. Tredwell, 6 Paige, 308.

The parties to either action are entitled by virtue of the pro-visions of the Code of Civil Procedure to have the question of rents- *613and profits collected by the several tenants in common settled and adjusted in the action. The parties and cause of action in Oheney v. Cheney are substantially the same in every respect as- the parties and cause of action herein. It is admitted that all the parties necessary to a complete determination among the parties interested were before the court in the first action and that all material questions and rights can be determined in that action. Great confusion and wrong would result if a rule were established which would allow a new action in partition to be brought at any time when a party to a prior action in partition dies, if in the new action an immaterial variation were made in the parties, or an unimportant change were made in the demand for judgment.

The action of Phoebe A. Cheney against Edward D. Cheney and others ought to be, and is, a bar to this action.

Findings and judgment may be prepared accordingly, with costs to the defendant Rankin.

■Judgment accordingly.