
    CHARLES NORTHRUP v. ALFRED H. SMITH. In Re. Petition of WILLIAM A. HARDING to have above action continued in his name as Plaintiff. ALFRED H. SMITH, Appellant, WILLIAM A. HARDING, Respondent.
    
      Revivor, meaning of “successor in interest” in Section 751 Code Civil Procedure—Petition for order of revivor, insufficiency of—Expedient rule to require notice to be given to administrator or executor.
    
    The words “ successor in interest ” in section 757 Code Civil Procedure, refer only to the possessor of an interest which commences, or as to the right of enjoyment depends, upon the fact of a death occurring.
    A petition for a revivor which simply sets forth that the cause of action was duly assigned by an administrator or executor by an instrument duly executed and acknowledged is insufficient. The assignment itself should be set forth.
    It is an expedient rule to require notice of a motion to be given to any party who may be affected by the granting of the motion; especially in the case of a motion by one claiming to be the assignee of an administrator or executor for an order of revivor should notice be given to the administrator or executor.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided May 5, 1890.
    
      Appeal by defendant from order granted upon the petition and affidavits, that William A. Harding be substituted as plaintiff. The facts sufficiently appear in the opinion.
    
      Thornton, Earle & Kiendl, attorneys, and Charles M. Earle of counsel, for appellant, argued:—
    I. The motion is made under § 757 of the Code. That section provides for the substitution of a representative or successor in interest, in case of death, as distinguished from a transfer of interest. Here the petitions both rely on a transfer of interest. Rogers v. Adriance, 22 How. 97.
    II. The papers do not show a plain prima facie state of facts sufficient to sustain the application, whether it be under § 756 or under § 757. The new papers set forth no facts, but only allegations of devolution of title. They should make out, by appropriate facts, a clear prima facie case, and this for two reasons : 1st. Because the order here, and the papers on which it is based, are admissible on the trial to prove the transfer of interest. Smith v. Zalinski, 26 Hun, 225. That was a case of foreclosure, and after the commencement of the action the plain tiff made an assignment; thereafter the assignee was substituted as plaintiff by order. On the trial the plaintiff introduced the motion papers in evidence, against defendant’s objection and exception, as proving transfer of the bond and mortgage, and title and ownership in plaintiff, and it was held sufficient, and defendant’s exception was overruled. It was held that his remedy was to oppose the motion to substitute or seek relief by a new motion, and the court also said he might, if he could, give evidence to disprove the plaintiff’s title. But this, of course, throws the burden of proof on the defendant, making this order of itself enough to establish the plaintiff’s prima facie case as to title. Under such circumstances is it not just that plaintiff should do more than merely allege, as in a pleading, “ that the cause of action was duly “ assigned by the administratrix * * * to one “ John Pierce, who thereafter transferred,” etc. If this proceeding is to take the place of proof, it should itself partake of the nature of proof. 2d. Because the authorities hold that the plaintiff must make out a clear case of ownership. This proceeding is the modern substitute for the writ of scire facias,and in that proceeding it was necessary for those applying to be made plaintiffs to show that they had succeeded to the original plaintiff’s title. Boynton v. Hoyt, 1 Den. 53 (see p. 57 middle). Since the Code the rulings have been the same. St. John v. Croel, 10 How. 253 ; See also St. John v. West, 4 How. 329 (at p. 334) ; Smith v. Zalinski, 26 Hun, 227. In this case there is the more reason to insist on this rule, because there is no copy given in the papers of an assignment from the administratrix to Pierce, nor from him to plaintiff, nor any statement of consideration for the transfer from the administratrix, nor of application by her to the Surrogate for leave to transfer. It is hence perfectly fair to conclude that the transfer was without consideration. But then it would be a devastavit, and void. Williams on Exrs. 840, 841, 842 ; Colt v. Lasnier, 9 Cow. 320 ; Sacia v. Berthond, 17 Barb. 15.
    III. In any event, and whether plaintiff relies on an assignment from Mr. Northrop or from his administratrix, there should have been notice to her, and she should have been made a party to this proceeding, so as to estop her by record from denying petitioner’s title. Where a plaintiff has, pending an action, transferred his interest and died, his assignee after his death must move to be substituted as plaintiff, and must give notice to the defendant and to the personal representatives of the deceased plaintiff. McLoughlin v. Mayor, etc., 8 Weekly Dig. 560; 8 Daly, 474.
    
      
      Harriman & Fessenden, attorneys and of counsel, for respondent, argued :—
    I. The facts in the petition brought the application within the section, if they were true, and they were not denied. McLachlin v. Brett, 2 Civil Procedure Reps. 194 ; 34 Hun, 478 ; 105 N. Y. 391.
    II. The judge at special term had the right to compel the applicant to give notice of the motion to the representative if he was not satisfied with the proof of devolution of interest ; but if he was satisfied he could properly grant the application and leave the question of the devolution of interest to the defence of the action. The appellant is not injured by not having the representatives of plaintiff in court on the application, because any objection which could have been made by the representatives are available to appellant by way of defence. Defendant can deny the allegations of the complaint in respect to the transfer of the cause of action. He can by law compel plaintiff to give him an inspection of the assignments of the cause of action mentioned in the proposed complaint - and in the petition ; he can examine plaintiff and the administrator before trial, and can ascertain fully all the facts bearing on the actual ownership by Harding of the cause of action. The judge at special term had the discretion to leave appellant to this, and his exercise of it is no ground for reversal of the order of substitution. Schlecter v. Saw Mill Co., 35 Hun, 339.
   By the Court.—Sedgwick, Ch. J.

The decision below involved the construction of section 757 Code Civil Procedure. The section is, that in case of the death of a sole plaintiff or sole defendant if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest. The question is, what is the meaning of “ successor in interest.”

I am of opinion that the words refer to the possessor of an interest which, apart from the right to the interest, however' that may be created, commences, or as to the right of enjoyment depends, upon the fact of the death occurring. And they do not refer to an interest gained by transfer from the party by assignment which transfers the interest before the party’s death.

So far as the petitioner rested his motion upon the assignment by the plaintiff in his life time, the motion should have been denied irrespective of the consideration that the transfer assigned the judgment only, which has since been reversed upon appeal.

The petitioner also claimed under an assignment made- by the administratrix of the plaintiff. The proofs on this subject were insufficient. The petition, and there was no other proof on the subject, averred that since the death of Northrup, letters of administration have been taken out on his estate, and the cause of action set up in the complaint was duly assigned by the administratrix by an instrument duly executed and acknowledged to one Pierce, who thereafter transferred and assigned the same to your petitioner. These are not statements of facts but results of opinion or inference from the relevant facts. The expediency of requiring facts to be given is illustrated in this case. The assignment by the plaintiff in his life time, is of the judgment only. Whether this embraces an assignment of the cause of action is a matter of law. But it is necessary for the court to have the assignments made after the death put in evidence, so that it may judge, and not the petitioner, whether they had the efficacy the petitioner gives to them by way of opinion or inference. I am of opinion the motion should have been denied.

The decision here may be made without giving as one of its grounds that there should have been notice of motion to the administratrix of the plaintiff. Nevertheless, it may be said that it is a most expedient rule to require notice of motion to any party that may be affected by a granting of the motion, and especially in such a case as this where- the party to be affected is a party that apparently has a right to continue the action. That- administratrix would have a right to apply to continue the action and would not be bound by the decision of the motion here.

I think the order should be reversed with ten dollars costs, and the motion below denied with ten dollars costs.

Freedman, J., concurred.  