
    Laura Keene v. John La Farge.
    If a sole defendant die pending an action after issue joined .therein, and before trial, Ms personal representatives have no right to an order requiring the plaintiff to continue the action against them, as the defendants therein. In such a case, the plaintiff, at Ms election, may require it to be discontinued.
    (Special Term,
    October 28, 1858,
    before Bosworth, Ch. J.)
    The defendant having died, leaving a last will and testament, by which Louisa La Large and John Binsse were appointed his executrix and executor, and letters testamentary having been issued to them, they, on an affidavit of these facts, and on the pleadings, now move “for an order to continue this action in the name of Laura Keene, as plaintiff therein,” against them as such executrix and executor, “ as defendants therein, and to declare said action to be in the same plight and condition as the same was at the time of the death of John La Large.” The action was at issue on complaint and answer when La Large died. The complaint sets out a written and sealed lease, executed by John La Large, to the plaintiff, of the Metropolitan Theatre, and alleges performance of all the covenants on her part, and that John La Large, during the term granted, “ wrongfully, and in violation of the covenants of said lease, evicted this plaintiff from said premises, and refused to fulfill the covenants of said lease.” The answer denies that she kept the covenants on her part, and avers that she failed to pay the rent when due, and was, for that cause, dispossessed by summary proceedings, pursuant to statute, which are set forth.
    
      H. A. Cram, for the motion.
    
      E. L. Hearne, contra,
    insists, 1st. That the cause of action does not survive; and 2nd, That the executrix and the executor cannot make such a motion, and that the plaintiff alone can make it; and 3rd, That she does not desire to have the action continued.
   Bosworth, Chief-Justice.

In so far as this action proceeds on the idea of a breach by John Lafarge of his implied covenant of quiet enjoyment by the plaintiff (3 Kernan, 151), it sounds in contract, and continues. In so far as it is based on the allegation of a wrong done by John Lafarge- to the rights of the plaintiff, as his lessee, it continues by force of section 1 of 2d Revised Statutes, p. 447.

The only other question is, whether the representatives of the deceased defendant may move for and obtain an order continuing the action, or whether the option is given to the plaintiff alone to move, or to omit to move, for such an order? The only authority for such a motion is that furnished by section 121 of the Code. By that, after the lapse of a year from the death of a party, the Court cannot allow the action to be continued, except upon “a supplemental complaint;” such a proceeding cannot be taken by a defendant.

Prior to the Code, the death of .a sole plaintiff or of a sole defendant, before verdict or interlocutory judgment, abated an action at law, and it could not be continued by or against the representatives of the deceased (2 R. S. 386-389): The Chancellor decided, in White v. Buloid (2 Paige, 475), that the personal representatives of a sole complainant who had died, might, on their own motion, be substituted as complainants under section 115, 2 Revised Statutes, p. 184. The language of this section is as general as that part of section 121 of the Code, which applies to motions made within a year after the death of a party, with the exception that section 115 applies only to the case when a complainant shall die.” But I find' no provision in the Revised Statutes broad enough to enable the representa? fives of a deceased sole defendant to -make such a motion, Section 126 (120) evidently applies to the case of the death of me of two defendants, and not to the death of a sole .defendant.

If only the representatives of such a deceased party can make a “ motion," within one year after the death, as cap be allowed

after the year, “on a supplemental complaint,” to continue the' action, then it would appear that section 121 was designed to confer on the representatives of a deceased sole plaintiff only, the election to continue the action or to abandon it, and that it was not designed to enable the representatives of a deceased sole defendant to compel the plaintiff to continue the action against his will: Such a construction does not deprive the representatives of a deceased sole defendant of any rights which they had prior to the Code, nor confer on the representatives of a deceased sole plaintiff any rights which those of a deceased sole “complainant in a suit in equity” did not possess, although, in actions at law, it enlarges the remedies of the representatives of a deceased sole plaintiff. This construction accords with the vieyr taken of the Revised Statutes by Chancellor Walworth, in Souillard v. Dias (9 Paige, 393).

Motion denied, without costs; but an order may be entered, that the action be discontinued, unless the plaintiff serve within ten days after written notice of the order to be entered hereon, a consent that an order be entered continuing the action.  