Stewart v. Powers
The Superior Court of New York City
Motion to set aside a supplemental complaint. Two of the plaintiffs having died, pending the action, and more than a year having elapsed since such-death, a supplemental complaint, alleging such death, and that others, named therein, had succeeded to the interests of the deceased persons, was, without any leave obtained therefor, served upon the defendants, for the purpose of reviving the action in the name of such successors in interest.
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Motion to set aside a supplemental complaint. Two of the plaintiffs having died, pending the action, and more than a year having elapsed since such-death, a supplemental complaint, alleging such death, and that others, named therein, had succeeded to the interests of the deceased persons, was, without any leave obtained therefor, served upon the defendants, for the purpose of reviving the action in the name of such successors in interest. The motion was made on the ground that it was-irregular to serve the supplemental complaint without leave of the court.
1Opinion of the CourtMonell, J.
The question involved in this motion has not, that I am aware of, been adjudicated upon by this court. In the supreme court the decisions are conflicting. Those holding that a motion is unnecessary, are Matter of Bordsdorf (17 Abb. Pr. 168); approved in Roach v. La Farge (19 Id. 67); while Green v. Bates (7 How. Pr. 296) ; Johnson v. Williams (2 Abb. Pr. 229); special term decisions, and Coon v. Knapp (13 How. Pr. 175); a general term decision, and Gordon v. Sterling (Id. 405); decided at special term, held that a motion is necessary.
Perhaps a literal reading of section 121 of the Code, will…
2Cases cited4 opinions
- Greene v. BatesNew York Supreme Court · 1852
- Coon v. KnappNew York Supreme Court · 1856
- In re BorsdorffNew York Supreme Court · 1863
- Johnson v. WilliamsNew York Supreme Court · 1855