
    WILLIAM J. STEWART and Others, Plaintiffs and Respondents, v. SARAH JAMES, Impleaded, &c., Defendant and Appellant.
    Before Sedgwick and Speie, JJ.
    
      Decided December 9, 1874.
    I. Supplemental complaint to continue an action by ob against THE SUCCESSOBS IN INTEREST OF A DECEASED PARTY.
    1. Such complaint can not be served without have of the court first obtained, upon proper notice to the opposite party.
    
      a. Special term decision {ante, p. 56), reversed.
    2. A motion to set aside such a complaint so served, is proper, and should be granted.
    Appeal from order denying a motion to set aside a supplemental complaint.
    Two of the original plaintiffs died after the action was begun. A year elapsed from their death. A supplemental complaint alleging such death, and that others named therein had succeeded to the interests of the deceased plaintiffs, was, without leave of the court first obtained therefor, served upon the defendants for the purpose of reviving the action in the .name of such successors in interest.
    The defendant James thereupon made a motion that the supplemental complaint be set aside for “irregularity, in this, that no order of the court has ever been made or served allowing the same, and also upon the merits, or for such other order or relief as the court shall deem just.”
    This motion was denied, and the present appeal is taken from the order denying the motion.
    
      Mr. J. L. Egbert, of counsel for appellants.
    
      
      Mr. A. R. Dyett, of counsel for respondents.
   By the Court.—Sedgwick, J.

The substance of the question before us is whether, under section 121 of the Code, an action can be revived, on a supplemental complaint, without leave of the court first obtained. As an original question, we would agree with the learned judge who decided, below, that it might. We think, however, that Beach v. Reynolds (53 N. Y. 1), requires us to come to another conclusion. The court of appeals, in the first proposition announced by it, implies, if it does not explicitly say, that an application to the court is necessary, under section 121, in all cases where the representatives of a deceased party desire to continue the action. That court further affirms the order, for the reasons assigned by Judge Talcott. That learned judge, apart from his general reasoning, specifies that it was the intention of the Code to put the supplemental complaint of section 121 in the same category with the supplemental complaint of the Code especially provided for in section 177, and- that the former could not be filed without a motion asking leave to do so.

The respondents ask that, if the court come to the -conclusion already indicated, they have, by a modification of the order appealed from, leave to file, nunc pro tunc, an order allowing them to file a supplemental complaint. This would not be proper, for the reason that, as yet, the defendant has had no opportunity of setting before the court the facts on which she may rely to convince the court that its discretion should not be exercised in favor of allowing a supplemental complaint to be served.

The order appealed from should be reversed, with •costs.

Speir, J., concurred.  