
    MARY ANN DOHERTY, et al., as Grantors of Charles Jones, Respondents, v. GEORGE W. MATSELL, Jr., et al., Appellants.
    
      Ejectment by grantee in the names of grantors—Death of some of parties plaintiff—Defeat of parties—Amendment nunc pro tuna bringing in representatives not allowed.
    
    Where in an action of ejectment brought hy a grantee in the names of his grantors, some of the plaintiffs die after the commencement of the action, and before trial, there is a defect of parties, which defense maybe availed of on the trial by objecting to the cause proceeding without bringing in the representatives of the deceased parties.
    The remedy for the defect is not to he found in sections 755-761. It is to amend the complaint and proceed de novo. Such amendment should not be allowed nunc pro tuna as of the day preceding the trial.
    Before Sedgwick, Oh. J., and O’Gorman, J.
    
      Decided March 1, 1886.
    Appeal from order allowing the revival and continuance of an action and an amendment of the complaint nunc pro tunc.
    
    The action was in ejectment under section 1501 of the Code of Civil Procedure. The complaint alleged that the plaintiffs at the time of the conveyance thereinafter set forth, were the owners in fee simple absolute, and entitled to the possession of a certain piece of real estate particularly described; that at the time of said conveyance, the defendants were, and thence remained in possession of said real estate claiming and pretending to hold such possession adversely, and that they now withhold the possession from the plaintiffs and their grantee ; that on, &c., the plaintiff by deed granted and conveyed said real estate to Charles Jones,- and that this action was prosecuted by Charles Jones pursuant to the provisions of section 1501 of the Code of Civil Procedure. After-answer, the issues were tried before a jury. Upon the trial, a witness proved that two of the plaintiffs had died after service of answer and before the trial. The defendants’ counsel moved to dismiss the complaint on the ground that the two plaintiffs had died. The motion was denied, and an exception taken. Subsequently, and on the whole case, the court directed a verdict for defendants, and that the plaintiffs’ exceptions be heard in the first instance at the general term. Before the case was heard at general term, the grantee in the deed, Charles Jones, made a petition, setting up the death of two of the plaintiffs, and on the hearing of this petition, upon notice, an order was entered that the action be revived and continued in the names of the executors of the wills of the deceased plaintiffs respectively, “and that the plaintiffs have leave to amend the proceedings herein and amend and supplement their complaint, showing the death of said plaintiffs, and the qualifications of their respective legal representatives, so as to conform the same to the proof taken on the trial, nunc pro tunc, as of November 5, 1885, upon payment to the defendants of five dollars costs.” The trial was begun on November 6, 1885. From this order defendants appeal.
    
      J. H. BarowsJcy, attorney, and John O. Shaw, of counsel for appellants,,
    on the questions considered in the opinion, argued :—The court had no power to grant the order and verdict in favor of the defendant. The affidavits show that the parties plaintiffs who had died, and whose representatives it was sought to bring in, died after the commencement of the action and before the action was tried. In such event, the court cannot grant an order for the revival of the action and enter nunc pro tunc as of a day before trial. Title 1, chapter 14 of the Code refers to acts relating to real property. Section 1521, which treats of abatement of such actions, reads as follows : “ The provisions of title 4 of chapter 8, as applied to an action specified in this article, are subject to the qualifications that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections.” The next two sections, 1522 and 1528, do not relate to a case like this. Section 1522 provides that the “action is to be divided when different persons succeed to different parcels.” Section 1523 relates to actions “ where different persons succeed to real property and to rents and profits.” This case must therefore be governed by title 4 of chapter 8 of the Code, which embraces sections 755 to 766. Sections 755 to 761 relate to proceedings where the party dies before verdict. Section 762 is to the effect that the preceding provisions—that is, 755 to 761—do not apply to a case where special provision is otherwise made by law. Before the passage of part 2 of the Code, this section was always printed with a note, that these provisions did not relate to actions of ejectment. Down to 1880 the provisions of the Revised Statutes relating to suits in ejectment were in force, they were not affected by the repealing act of 1877. Section 455 of the old Code expressly provided that the provisions of the Revised Statutes applied to all such actions. Turning to the title Ejectment in the Revised Statutes, part 3, chap. 5, tit. 1, section 32 (2 Edm. R. S. [2 ed.] 317), we find that it reads as follows : “§32. The action of ejectment shall not be abated by the death of any plaintiff, or of one of several defendants after issue and before verdict or judgment ; but the same proceedings may be had, as in other actions, to substitute the names of those who may succeed to the title of the plaintiff so dying, in which case the issue shall be tried as between the original parties.”
    It is perfectly apparent from this that this substitution of parties must be made before verdict or judgment, and the practice is the sanie under sections 755 to 761. Sections 763 and 764 apply to the case of the death of a party after verdict. The practice under the old Code was the same. Section 121 provided for cases both before and after verdict. The reason for the rule thus contended for is beyond the mere question of practice. The original plaintiffs were all necessary pari ies to the action, and in case of the death of either of them after issue joined and before verdict, their representatives should have been brought in to take their place. If the plaintiffs proceeded without them they did so at their peril; if they obtained a judgment it could not stand ; so the overruling of the defendants’ objections was error, and any judgment obtained in spite of such an objection must be reversed. This precise point was raised and decided in the case of Hasbrouck v. Bunce (62 N. Y. 475). If the plaintiff had been non-suited, could he have claimed the absolute right, or would the court have the power to grant him leave to bring in the very parties because of whose absence the non-suit was granted ? If such practice prevails, the effect of the granting of such a motion would be to destroy the judgment entered on the non-suit.
    This statement illustrates in a concise manner the limitation of the power of the court to grant such an application, it must be made before trial, and the rights acquired on the trial cannot be destroyed by an order made after trial, to take effect nunc pro tunc as of a day before the trial. The defendant in this case had a verdict with a direction that the plaintiff’s exception should be heard in the first instance at the general term. This is simply a motion for a new trial on a case and exceptions made to be heard before the general term instead of the special term.
    The verdict should be reversed and the new trial granted, if it appears from what took place on the trial that the plaintiff should not have had a verdict. This we have shown he was not entitled to, in the absence of the representatives of the deceased plaintiffs ; that objection was fatal to the plaintiffs (Hasbrouck v. Bunce 62 N. Y. 476).
    
      Thain & Kearney, attorneys, and Alexander Thain, of counsel for respondents,
    argued :—I. It is not apparent to the plaintiffs in what manner the defendants are injured by the order appealed from. The legal representatives of the deceased plaintiffs, who are the only persons who can possibly be injuriously affected by this order, are not complaining ; the order in fact granting an application that these parties be brought in and be bound by a judgment which is against them. Had the verdict been in favor of plaintiffs, the defendants might be heard to complain.
    II. The plaintiffs so brought in were but nominal parties to the action. The real party in interest has always been their grantee, Charles Jones. So again, it is not apparent that any substantial change of parties has been made, or that any change has been made affecting the interests of the defendants.
    III. It may be urged that by reason of the adverse possession of the defendants, the deed by Mr. Jones’ grantors was void, but still his title will be complete, should he ultimately succeed in his action, by reason of the conveyance to him by the deceased plaintiffs prior to their death, the deed operating as an estoppel against the legal representatives of the deceased plaintiffs.
    IV. The order was in effect a conformation of the pleadings to the proof, which had been made upon the trial, principally by the cross-examination of the defendants {Code, § 723).
   By the Court.

Sedgwick, Ch. J.

On the first impression, it would seem that in such a case the successors or representatives in interest of the deceased plaintiffs, are not the executors of their wills, but their heirs or devisees. As no notice was taken of this on the argument, it may be presumed that in some way the executors are tenants in common with the surviving plaintiffs.

In Hasbrouck v. Bunce (62 N. Y. 475), the court of appeals said of a like case, that if the defect of parties had existed at the time of the commencement of the action, it would have been waived by the failure to take the objection in proper form. It does not proceed to say that when the death occurs after issue joined, the objection must be taken by an answer-in the nature of a plea in abatement, puis darrien continuance. It says, that the objection having arisen since the commencement of the action, the only mode in which the defense could set it up, was by objecting to the cause proceeding without bringing in the representatives of the deceased parties, and that such an objection should be sustained. It was also said that it was in the power of the court below, to allow the defect to be remedied by amendment or supplement.

In my opinion, the remedy for the defect is not to be found in sections 755 to 761. They do not provide for a case where in substance the non-presence of a party as plaintiff, is the ground of the remaining plaintiffs having no cause of action whatever, if the fact be pleaded or stated as an objection to proceeding. The remedy is analogous to that which may be applied after an answer of a defect of parties. It is to amend the complaint and proceed de novo. It would not be correct to allow such an amendment nunc pro tunc, for in substance the amendment makes a new action, and the defendant should not be deprived of his right to plead that the substituted parties are not the proper representatives of the deceased plaintiffs.

In the present state of the proceedings, it is inexpedient, if not inadmissible, to order an amendment which will have the effect of disregarding the proceedings upon the trial and the verdict there directed for the defendants. It is not now competent for this general term, on appeal from this order, to deal with the verdict as can be done when the exceptions are brought on for argument. It; cannot now be adjudicated that the defendants are not entitled to judgment upon the verdict. I therefore think that the order below should be reversed, and an order entered denying the motion, with $10 costs to defendants, but without prejudice to a motion for amendment to be made after a determination of the exceptions to be argued at general term. The defendants are to have $10 costs of the appeal in this action.

O’Gorman, J., concurred.  