
    ARTHUR against GRISWOLD.
    
      Supreme Court; Second Department, Second District, General Term,
    December, 1874.
    Abatement and Revival.—Parties.—Severance oe Actions.—Tort.—Corporation.
    
      It seems, that where, pending an action of tort against partners, one partner dies, the action should be severed, in order to proceed both against the survivors and the representatives of the deceased.
    But if the representatives procure themselves to be substituted, the order of substitution cannot be vacated on their application, after they have obtained a judgment in their favor, on appeal, directing a new trial.
    William Arthur brought this action in this court against John A. Griswold, and others, as trustees of The Iron Mountains Company, of Lake Champlain, for alleged fraud in inducing plaintiff to make loans, amounting to the sum of forty-five thousand dollars, to said company, as well as on their liability as such trustees, for filing a false report, &c.
    After a trial and judgment in favor of the plaintiff, . the defendant, John A. Griswold, died, pending an appeal, and his executrix, Elizabeth H. Griswold, and executors, Chester Griswold and John W. Griswold, obtained an order, substituting them as defendants ; the appeal was further prosecuted by them, and judgment had in their favor, directing a new trial.
    Thereafter, the executrix and executors, on motion, obtained an order at special term, vacating the order which substituted them as defendants in the action, and from this order the plaintiff appeals.
    
      C. A. Hand, for the plaintiff, appellant,
    
      Cited Greenfield v. Mass. Life Ins. Co., 47 N. Y, 430, 435 ; Fisher v. Hepburn, 48 Id., 41; Merchants’ Bank v. Bliss, 35 Id., 412 ; Chaffee v. United States, 18 Wall., 516; Creed v. Hartmann, 29 N. Y, 591; Boynton v. Hatch, 47 Id., 225 ; Brom, on Parties, 248 (56 Law Lib. 171); Hardyman v. Whitaker, 2 East, 573, note; 2 Rex. Stat., 448, § 1; Yertore v. Wiswall, 16 How. Pr., 8; Doedt v. Wiswall, 15 Id., 128; Code of Pro., § 121 ; Livermore v. Bainbridge, 49 N. Y., 125 ; Gardner y. Walker, 22 How. Pr., 405 ; McVean v. Scott, 46 Barb., 379 ; 1 Wait Pr., 154; Lochier v. Paterson, 1 Bar. & K., 271, and note thereto ; Wilson v. Tucker, 3 Stark. N. P., 154 ; Powell v. Reese, 7 Ad. & E., 426 ; Chapman v. Foster, 15 How. Pr., 241 ; Code of Pro., § 349 ; St. John v. Croel, 10 How. Pr. 253.
    
      William Q. Holbroolc, for the defendants respondent,
    —I. The object of reviving the cause, was to enable the representatives of Mr. Griswold to prosecute the appeal taken by him in his lifetime. Had he departed this life prior to the verdict, the action, as to him, would doubtless have abated. But the verdict having been rendered in his lifetime, and the action ■beingfor alleged wrongs, an abatement was saved by force of section 121 of the Code.
    The plaintiff having wholly failed to revive, it devolved upon the executrix and executors, in order to save the estate of their testator from being mulcted for the whole judgment, to apply for an order of revivor, so that the appeal might be regularly carried on in their names. An application was made for an order of revivor, pursuant to the direction of the presiding judge at the general term, where a suggestion of the death of Mr. Griswold had been made, and the order December 19, .1872, thereupon entered. It was absolutely necessary that the representatives of Mr. Gris-wold should revive the canse as they did, for the purposes, at least, of the appeal to the court of appeals. Except for the intimation of the presiding justice above adverted to, a mere suggestion upon the record would, doubtless, have been sufficient at the general term, as that court had become possessed of the cause before the death of Mr. Griswold. But in order to carry the case beyond that court, and to insure due regularity, it became necessary to enter a formal order of revivor in the court below.
    The counsel cited,—Rogers v. Paterson, 4 Paige, 409; Anderson v. White, 10 Id., 579; Anderson v. Anderson, 20 Wend., 585; Miller v. Gunn, 7 How. Pr., 159 ; Beach v. Gregory, 2 Abb. Pr., 203; Hastings v. McKinley, 8 How. Pr., 175; Schuchardt v. Remiers, 28 Id., 514.
    II. The judgment appealed from having been reversed, and the verdict wiped out, the cause stands as if no trial had ever been had (Cow. & H., Notes, part 2, p. 9; Woodcock v. Bennet, 1 Cow., 735; Close v. Stuart, 4 Wend., 98 ; Wood v. Jackson, 8 Id., 36 ; Hunt v. Hoboken L. & I. Co. 1 Hilt., 161). Had Mr. Griswold died before verdict, the action could not have been revived as to his representatives as a joint action, for the reason that no judgment had been obtained (Chapman v. Foster, 15 How. Pr., 241). Plaintiff elected to make the original defendants responsible if at all, on a joint liability, and so if Mr. Griswold had died before verdict, the action would have determined as to him (Bradley v. Burwell, 3 Den., 61; Lane v. Doty, 4 Barb., 534; Buckman v. Brett, 22 How. Pr., 233). The executrix and executors are entitled to the same rights that they would have had if their testator had died before verdict (Chitty on Pl., 50, 53, 66 ; Grant v. Shurter, 1 Wend., 148). At common law the action would survive against the surviving defendants only (Chitty on Pl., 67, 68 ; Gardner v. Walker, 22 How. Pr., 405; Voorhis v. Childs, 17 N. Y, 354).
    
      III. The executors did not waive the objection to joinder, since their duty compelled them to take the course they did take (Avery v. Slack, 17 Wend., 87; Bennett v. Ingersoll, 94 Id., 114; Broadhead McConnell, 3 Barb., 189, 190 ; Matter of De Vaucene, 31 How. Pr., 336, note; Wood v. Phillips, 11 Abb. Pr. N. S., 1). As plaintiff has not been misled by the course the executors have taken, they are not estopped (Jewett v. Miller, 10 N. Y., 406 ; Clute v. Jones, 28 Id., 284).
    The order of revivor was only for the purposes of the appeal.
    At ail events, plaintiff must amend his complaint in order to give evidence against the executors, in which case the defendants would be entitled to raise the question of joinder.
   By the Court.*—

Tapper, J.

—[After stating the facts.]—The action did not abate as to Griswold, and sounding in tort, it survives against his representatives (2 Rev. Stat., 448 ; Haight v. Hayt, 19 N. Y, 464).

Inasmuch as the surviving defendants, who are principals, may not be joined in an action of this nature with the representatives of the deceased Griswold, the proper practice seems to be, to move for a severance of the action (The Union Bank v. Mott, 27 N. Y., 633).

At all events, these representatives having voluntarily come into the action, and having obtained judgment in their favor, directing a new trial, the court will not now, on their application, vacate the order of substitution, which they obtained.

The order of special term, vacating the order of substitution, should be reversed, with ten dollars costs.  