of the deputy, and may therefore be joined with the deputy as a defendant in an action for the recovery of damages for the wrongful taking (King v. Orser, 4 Duer, 431; see, however, Waterbury v. Westervelt, 9 N. Y. 598; Moulton v. Norton, 5 Barb. 287; Nichols v. Michael, 23 N. Y. 269).

a. Tort-Slander.-It is not necessary to join all the parties to a tort as defendants; one or more or all may be sued jointly, or each separately (6 Johns. 26, 31; Nichols v. Michaels, 23 N. Y. 269; Creed v. Hartman, 29 N. Y. 591; Kasson v. The People, 44 Barb. 347; Phelps v. Wait, 30 N. Y. 78). Where a tort, however, consists of an oral slander by two or more, a separate action must be brought against each--they cannot be sued jointly (ib.; Forsyth v. Edmiston, 2 Abb. 431).

b. To stay proceedings on a judgment.-In an action to stay proceedings on a judgment against three defendants brought by one of said defendants, against the plaintiff in the first suit, and a general assignee of the said defendants, it was held that the other two defendants in the first judgment should have been made parties (Bowers v. Tallmadge, 16 How. 325).

e. Vendor and vendee.—Where, after a vendor of real estate has conveyed it with covenants for title and warranty, a mortgage is discovered unsatisfied of record, but which the vendor insists is satisfied, the vendee of the land may, in an action to have the mortgage satisfied of record, join his vendor and the holder of the mortgage as defendants (Wandle v. Turney, 5 Duer, 661). The vendee of an estate is a necessary party to an action to stay waste, intermediate the contract for sale and the completion of the contract (Kidd v. Dennison, 6 Barb. 9; see Van Deusen v. Young, 29 N. Y. 9). In an action for specific performance of the contract to convey land, part of a tract owned by one of the defendants, and upon which he had given mortgages prior to the contract to sell-held that the prior mortgagees were improperly made parties defendants (Chapman v. Draper, 10 How. 367).

d. Where goods have been obtained by fraud and the purchaser has assigned them in trust for creditors, an action may be maintained against such purchaser and his assignee to recover said goods (Jessop v. Miller, 1 Keyes, 321).

e. Principal and surety.—Where a principal and his surety are liable on the same instrument, they may be sued jointly in one action (Carman v. Plass, 23 N. Y. 286; Le Roy v. Shaw, 2 Duer, 626). Where the liability arises on different instruments, although on the same paper, they cannot be sued jointly (id.; De Ridder v. Schermerhorn, 10 Barb. 638; Allen v. Fosgate, 11 How. 218). And where a promissory note had a guarantee written upon it, the court held that the maker of the note and the guarantor could not be included in the same action (id.; and Phalen v. Dingee, 4 E. D. Smith, 379; Brewster v. Silence, 8 N. Y. 214).

119. (Am'd 1849.) Parties to be joined, &c.

Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of

the whole.

f. Where the parties as so numerous that it would be impossible to bring them all in, or, if brought in, to prevent the suits being continually abated by

death, or a change of interest, it has been allowed for one of the parties in interest to commence a suit on behalf of himself and all others equally interested with him. This must be distinctly stated in the outset, by a proper averment in the complaint (Smith v. Lookwood, 13 Barb. 218; and see Wood v. Draper, 4 Abb. 322; Bouton v. City of Brooklyn, 15 Barb. 375; Kirk v. Young, 2 Abb. 453; Roosevelt v. Varnum, 12 How 469; McKenzie v. L'Amoreaux, 11 Barb 516; Towner v. Tooley, 38 Barb. 598; Green v. Breck, 10 Abb. 42; Brooks v. Peck, 38 Barb. 519; Habicht v. Pemberton, 4 Sand. 657) The parties being thirty-five in number was held not to be an excuse for one suing on behalf of all (Kirk v. Young, 2 Abb. 453). One may not prosecute or defend "for the benefit of the whole" where the right to be enforced is not common to all (Reid v. The Eve greens, 21 How. 319). Persons having adverse or conflicting interests in relation to the subject-matter of the litigation ought not to be joined (Grant v. Van Schoonhoven, 9 Paige, 255). Where the right is common, but there is a question as to its enforcement, that does not constitute a conflicting interest (Brooks v. Peck, 38 Barb. 519; see Bishop v. Edmiston, 16 Abb. 466).

a. It is the right of a party who is sued to require that any other person jointly liable with him shall be made a co-defendant (Wooster v. Chamberlin, 28 Barb. 602). But where joint debtors reside in different States, they may be sued separately in the States having jurisdiction of their respective persons or property (Brown v. Birdsall, 29 Barb. 549); and the judgment in one State against one joint debtor is not a bar to a subsequent action in another State against the other debtor (id.) The fact that certain parties in interest are numerous and unknown is a sufficient excuse for not joining them as defendants (Coe v. Beckwith, 10 Abb. 296).

b. The rule that persons only severally and not jointly liable cannot be joined as defendants has not as a general rule been altered by the code. The only exceptions are those prescribed by section 120. No exception is created by § 167 (Le Roy v. Shaw, 2 Duer, 626).

c. An attorney claiming a lien on a judgment for costs cannot, in an action to recover such costs, no collusion being charged, make the judgment debtor a defendant (Adums v. Fox, 40 Barb. 442).

d Joint action against joint assignees of a lease (Van Rensselaer v. Layman, 10 How. 505).

e. The executor or administrator of a deceased joint debtor or owner of real or personal property, cannot be joined in an action with the survivor for a debt due the joint debtors or for an injury to their real property (Bucknam v. Brett, 22 How. 233; 13 Abb. 119; 35 Baro. 596).

f. In an action by a mortgagee of chattels for damages to his reversionary interest, caused by a sale of them in parcels while in the possession of the mortgagor under an execution against his property: Can a purchaser of part of the chattels be joined as defendant with the parties directing and making the sale (Manning v. Monaghan, 23 N. Y. 539) ?

Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action at the option of the plaintiff.

g. Although the several parties to a bill or note may be sued in one action, yet their being so sued does not make them jointly liable (Alfred v. Watkins, 1 Code Rep. N. S. 343), or joint debtors (Kelsey v. Bradbury, 21 Barb. 531; Farmers Bank v. Blair, 44 Barb. 642).

h, An action may be brought against the maker and the executor of the in

dorser of a promissory note, although the maker is solvent, but separate judgments must be entered (Churchill v Trapp, 3 Abb 306).

a An action by a subsequent indorser, against prior indorsers, to recover the amount he has been compelled to pay in a suit brought upon the note, is an action for money paid for the use of the defendants, and not an action on the note (Barker v. Cassidy, 16 Barb. 177), and therefore such an action cannot be maintained (id.)

§ 121. abate. Death of appellant.

(Am'd 1849, 1857, 1862, 1869, 1870.)

Action when not to

No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action.

After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.

At any time after the death, marriage, or other disability of the party plaintiff, the court in which an action is pending, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discretion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months nor exceeding one year from the granting of the order.

And where judgment has heretofore or shall hereafter be recovered for the possession of real property, and the party recovering said judgment shall have died subsequent to the recovery thereof, his successor in interest in said land, whether by grant, devise or inheritance, may revive said judgment and enforce the same by execution on motion within one year after said death, or afterwards on supplemental complaint.

Where an intestate, not being an inhabitant of the State, shall die out of this State, not leaving assets therein, and there shall be pending in the supreme court, or in the court of appeals, an appeal brought by such intestate from a judgment

against him, the court in which said appeal is pending may order the judgment appealed from affirmed, with costs, unless the attorney for the intestate, on said appeal, procure said action to be revived, within six months after notice to perfect such appeal, by the substitution of a representative of said intestate in said action.

a. The last paragraph of this section does not apply to actions pending on 6 May, 1870, nor to any right of action then th retofore accrued, and did not take effect until 1 June, 1870 (Laws 1870, ch. 741, s 15).

b. Actions commenced prior to the code.—(Phillips v. Drake, 1 Code Rep. 63; Spier v. Robinson, 9 How. 331; Vroorman v. Jones, 5 How. 369).

6. Arbitrations.-This section does not apply to (Manning v. Pratt, 18 Abb. 344).

d. Foreclosure suit does not abate by death of plaintiff (McGregor v. McGregor, 35 N. Y. 218).

e. Replevin.-Cause of action in replevin survives death of plaintiff, but not the defendant (Lahey v. Brady, 1 Daly, 443; Emerson v. Bleakley, 5 Abb. N S. 350; Potter v. Van Vranken, 2 Trans. Ap. 73).

f. Ejectment.-As to death of parties to actions of ejectment, see Laws 1865, ch. 357.

g. Corporation.-An action by a corporation is not abated by the dissolution of the corporation (N. Y. Marbled Iron Works v. Smith, 4 Duer, 362).

h. Party civilly dead.-When the plaintiff or defendant is sentenced to imprisonment in the State prison, the suit is abated (O'Brian v. Hagan, 1 Duer, 664; Freeman v. Frank, 10 Abb. 370).

i. Death of sole plaintiff.-The death of a sole plaintiff, before verdict, suspends all further proceedings in the action, except moving to have the plantiff's representative brought in as plaintiff (Jarvis v. Felch, 14 Abb. 46). But the defendant is entitled to have the action continued in the name of the representatives of the decedent (Ridgeway v. Bulkley, 7 How. 269); or after a year a supplemental complaint filed within a time to be prescribed by the court (Green v. Bates, 7 How. 296); or to have the original complaint dismissed (Banta v. Marcellus, 2 Barb. 373); the personal representatives of a deceased sole plaintiff are not bound to continue an action commenced by the decedent against an insolvent defendant; especially when for other reasons the object of the suit cannot be obtained by reason of facts which occurred or came to the plaintiff's knowledge after the commencement of the action. In such cases the court may allow the personal representatives to discontinue without costs (id.); or with costs out of the decedent's estate (id.; and see Chowick v. Dimes, 3 Beavan, 290). One who succeeds another in the administration of an estate may continue a suit commenced by his predecessor: he is not compelled to do so against his will (Bain v. Pine, 1 Hill, 616).

j. Where intermediate the argument and decision of a motion to strike out an answer the plaintiff died, held that the order deciding the motion could not be entered until an order was obtained reviving the action (Reed v. Butler, 11 Abb. 128).

k. The death of the plaintiff in a foreclosure suit, after the usual decree for sale by a referee, does not prevent the referee from proceeding to make the sale, and executing a deed to the purchaser (Lynde v. O'Donnell, 21 How. 34). It is not necessary to revive the action and bring in the representatives of the deceased plaintiff (id.) Semble, the death of party after verdict or interlocutory judgement or report of referee does not in any action prevent the entry of judgment (Reed v. Butler, 11 Abb. 128; Scranton v. Baxter, 1 Code Rep. N.. S. 88; Lyons v. Third Av. R. R. Co. 7 Rob. 605).

7. After the death of a sole plaintiff the defendant cannot move to dismiss the complaint for want of prosecution until the action has been revived by the plaintiff's representatives (Jarvis v. Felch, 14 Abb. 46).

a. Where on the death of a sole plaintiff his executor did not apply to continue the action, but transferred the subject-matter of the action to A.,―held that A. could not have the action continued in his name (Rogers v. Adriance, 22 How. 97).

b. A plaintiff suing as special receiver having died pending the action, his successor was allowed to continue the action by supplemental complaint (Palmer v. Murray, 18 How. 546; see Livingston v. Olyphant, 3 Rob. 639).

c. An administrator of a deceased plaintiff may have leave to continue the action, if the pleadings show a cause of action which survives, without regard to the merits of the action (Wing ▼ Ketcham, 3 How. 385). And if, in an action to recover real property, the plaintiff should die, leaving a widow, she need not, as widow, join in an application, on the part of the heirs, for leave to continue the action in the name of the heir (Ash v. Cook, 3 Abb. 389).

d. Death of one of several plaintiffs, partners.—In an action by the several members of a firm, on the death of one of the plaintiffs, a member of the firm, the right of the remaining members to continue the action, in a case in which the right of action survives, is unaffected, and no leave to continue the action is necessary. A suggestion on the record is sufficient (Taylor v. Church, 9 How. 190; La Chaise v. Libby, 13 Abb. 7; 21 How. 362).

e. Death of one of several plaintiffs.-Where one of several plaintiffs dies, and the cause of action does not survive, but continues as to the survivors, the latter cannot be compelled to revive the suit as to the representatives of the deceased plaintiffs (Williamson v. Moore, 5 Sand. 647). The survivors have a right to proceed with their suit. It is the privilege of a defendant, in such a case, to have an order requiring such representatives to show cause why the suit should not stand revived in their names, or that the suit be dismissed so far as their interests are concerned. This section does not apply to such a case (id.)

f. In an action by tenants in common for conversion of personal property, if, pending the action, one of the plaintiffs dies, the action may be continued by the survivor, without bringing in the personal representative of the deceased (Buchman v. Brett, 13 Abb. 119; 35 Barb. 596; 22 How. 233).

9. After the death of one of several plaintiffs in an ejectment suit, a motion was made by the surviving plaintiffs, to substitute the names of two individuals and the people of the State, as successors in interest of the deceased plaintiff, it being a matter of doubt which of the three parties proposed was entitled to the right: The motion was denied (St. John v. West, 10 How. 253).

h. Where one of several plaintiffs dies pending an action, the cause of which survives, and the defendant enters judgment against all, no order to proceed by or against the surviving plaintiffs having been made, the judgment is irregular, and will be set aside. And the judgment cannot be amended and allowed to stand as against the surviving plaintiffs (Holmes v. Honie, 8 How. 383; and see Tracy v. First Nat. B'k of Selma, 37 N. Y. 523).

¿. Death of a sole defendant.-Where, pending an action, and before verdict or interlocutory judgment, a sole defendant dies, his representatives cannot have an order, against the wishes of the plaintiff, to be substituted as defendants in the action (Keene v. La Farge, 1 Bosw. 671; 16 How. 377). An action for the recovery of possession of specific real or personal property against a sole defendant wholly abates if the defendant dies before verdict or judgment; and the court has no power in such case to order the action to be continued against the personal representatives of defendant (Hopkins v. Adams, 5 Abb. 351; Mosely v. Mosely, 11 Abb. 105; Putnam v. Van Beuren, 7 How. 31; Mosely v. Albany N. R. R. Co. 14 How. 71).

j. On the death before verdict of a sole defendant in an action to recover damages for death by wrongful act, the action may be continued against the personal representatives of the deceased (see Yertore v. Wiswall, 16 How. 8; Doedt v. Wiswall, 15 How. 128).

k. Death of one of several defendants.-If a defendant die and the