
    DOHERTY v. MATSELL.
    
      N. Y. Superior Court; General Term,
    
    March, 1886.
    Ejectment.—Revival of Action.—Parties, defect of, how remedied.—Amendment of Complaint after verdict nunc pro tunc.
    "Where, after issue and before the trial of an action of ejectment, 1 brought by a grantee in the name of his grantors against defendants who held adversely at the time of the conveyance, one of the plaintiffs dies, the remedy for the defect of parties is to amend the complaint and proceed de novo.
    
    Where a motion, at the trial to dismiss the complaint because of such defect, is denied, and subsequently, upon the whole case, the court directs a verdict for the defendants, and that the plaintiff’s exceptions be heard in the first instance at the general term,' it is inexpedient, if not inadmissible, before the case is heard on the exceptions, to make an order, reviving the action against the representatives of the deceased party, and allowing an amendment of the proceedings in that respect, nunc pro tunc as of the date of trial, in disregard of the proceedings upen the trial, and the -verdict there-directed.
    Appeal from an order allowing the revival and continuance of an action, and an hmendment of the complaint nunc pro tunc.
    
    Mary Ann Doherty, and others, as grantors of Charles Jones, brought this action of ejectment against George W. Matsell, Jr. and another, under the Code of Civil Procedure, section 1501.
    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 plaintiff 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. The trial was begun on November 6, 1885. Upon the trial a witness proved that two of the plaintiffs had died after service of answer and before the trial. The defendant’s counsel moved to dismiss the complaint on the ground that the two plaintiffs had died. The motion was denied, and an exception taken. Subse-. quently, and bn the whole case, the court directed a verdict for the 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, it was ordered 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 ot said plaintiffs and qualifications of their respective legal representatives so as to conform the same to the proofs taken on the trial nunc pro tunc as of November 5, 1885, upon payment to the defendants of five dollars costs.” From this order defendants appealed.
    J. C. Shaw (T. H. Barowsky, attorney), for the defendants, appellants.
    
      Alexander Thain (Thain & Kearney, attorneys), for the plaintiffs, respondents.
    
      
       Sedgwick, Ch„ J., and O’Gorman, J.
    
   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. Bruce (62 N. Y. 483), 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 the 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 he 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 of 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 nuncp>ro 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 inex- , pedient, if not inadmissible, to order an amendment which will have the effect of disregarding the proceedings upon the ti ial, and the verdict there directed for the defendant. It is not 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.  