cause of action not survive, and the plaintiff neglect to procure the revival of the suit, the court may order it to stand revived, upon the petition of a surviving defendant, against the representatives of the deceased party (2 R. S. 184, § 120). In such case, the surviving defendant may proceed against such representatives, to compel them to appear; and the court may stay the suit as against him, until such proceedings have been had (id. § 121). These provisions are referred to, as though still in force, in Keene v. Lafarge, 16 How. 377. Where one of several defendants died pending the reference of an action of foreclosure, and the plaintiff suffered more than a year to elapse without taking any step in the action, the surviving defendant moved to have it dismissed as against him. The court directed the action to be dismissed as to the surviving defendant with costs, unless the plaintiff within sixty days obtained leave to file and serve a supplemental complaint (Chapman v. Foster, 15 How. 241). Where, pending an action for trespass, one of the defendants dies, the plaintiff may treat the ac ion as abated as against such deceased defendant, and proceed against the surviving defendants (Gardner v. Walker, 22 How. 405). Semble, that by order the plaintiff might proceed separately against the surviving defendants and the representatives of the deceased defendant (id.)

a. In case one of several defendants dies, pending an action, all that is necessary to put the case in a position to proceed, is to obtain, within a year, an order that the action be continued against those who have succeeded to the interest of the deceased party (Gordon v. Sterling, 13 How. 405). Where in an action against several defendants, joint debtors, and one only is served with process, if he die before judgment and before the others are brought in, an order to continue the action against the personal representatives of the deceased defendant is not proper. The action should be continued against the other defendants (Fine v. Righter, 3 Abb. N. S. 385). Where one of two joint defendants dies before judgment, the action cannot be revived as a joint one against the survivor and the personal representative of the deceased, but may, it seems, be revived as separate actions (Union Bank v. Mott, 27 N. Y. 633).

b. Death of one of several executors, &c.-In actions by or against executors, trustees, joint-tenants, or co-partners, on the death of one of the executors, &c., the action continues by or against the survivors, a suggestion of the death entered on the judgment roll is the only addition to the proceedings occasioned by the death (Lachaise v. Libby, 13 Abb. 7; 21 How. 362).

c. Public officers.-Under 2 R. S. 447, § 100, providing against the abatement or discontinuance of suits by or against certain public officers, it is optional with the parties authorized to apply for a substitution, whether they will make such application or not, and until they or the adverse parties apply for a substitution, the suit is to proceed in the names of the original parties (Manchester v. Herrington, 10 N. Y. 164).

d. Death of execution debtor.—The death of a sole judgment debtor pending proceedings supplementary to the execution abates the proceedings (Hasewell v. Penman, 2 Abb. 230).

e. Death of party pending an appeal.—Where a judgment debtor dies pending an appeal from the judgment, and after the appeal has been argued and submitted the judgment is affirmed, but judgment of affirmance entered nunc pro tunc as of a day before the death, the judgment creditor may proceed to collect the judgment, the representatives of the deceased cannot appeal until they cause themselves to be made parties (Beach v. Gregory, 2 Abb. 203). After judgment for the plaintiff, in an action of tort, and appeal taken by the defendant, the defendant died, pending the appeal: on motion, it was ordered that the appeal might be continued in the name of his personal representatives (Miller v. Gunn, 7 How. 159). In Hastings v. M'Kinley, 8 How. 175, the court of appeals held that section 121 did not apply to that court, and that where a party in a cause dies after appeal taken and the return filed in the court of appeals, that court has power to and will allow his legal representatives to be substituted. The representatives of a deceased sole defendant, in an action after judgment, and pending an appeal thereon, have the right to

have themselves made parties to the appeal (Schuchardt v. Remiers, 28 How. 514; 1 Daly, 459).

a. Transfer of plaintiff's interest.—In case of a transfer of the interest of the plaintiff, in the subject of the action, it is optional with the court, on the death of the plaintiff, whether or not to allow the assignee to be substituted and the action continued in his name; and on the application, the defendant should be heard, and his interest taken into account (Sheldon v. Havens, 7 How. 268; and see Harris v. Bennett, 1 Code Rep. N. S. 203; Murray v. Gen'l Mut. Ins. Co. 2 Duer, 607; Ford v. David, 1 Bosw. 571). And the superior court hold that where a plaintiff transfers his interest after the commencement of a suit, no order of substitution will be made, unless special circumstances are shown to satisfy the court of its propriety or necessity (Howard v. Taylor, 11 How. 380; 5 Duer, 604). A defendant cannot compel an assignee of a cause of action pending the suit to become a plaintiff (Packard v. Wood, 17 Abb. 318; Emmet v. Bowers, 23 How. 300).

b. When, pending an action, the whole interest of the plaintiff has been transferred to a third person, the court, on the application of such third person, may allow him to be substituted as plaintiff (Banks v. Maher, 2 Bosw. 690).

c. When two persons are named as defendants, and only one is served, and judgment is thereupon perfected against him, there is no action pending against the one not served, until he is served (1 Bosw. 636; 14 Barb. 536; 2 E. D. Smith, 75). So that if afterwards the cause of action becomes vested in a third person, and then the defendant not previously served is served, the assignee cannot be substituted as plaintiff in the action against the defendant last served (East River Bank v. Cutting, 1 Bosw. 636).

d. Transfer of defendant's interest.—Where, pending an action of ejectment, all the interest of the defendant was transferred to A., and A. entered and held possession of the premises,--held that the original cause of action did not continue against A., and he could not be substituted as a party to the action (Moseley v. Albany North. R. R. Co. 14 How. 71). In Hornfager v. Hornfager (1 Code Rep. N. S. 180), an action for partition, one of the defendants, after the commencement of the action, assigned all his interest in the premises to one Ely; and it was held that Ely might have been substituted as a party to the action, in the place of the defendant who had assigned to him.

e. Order to continue, &c.-To substitute an assignee, pending the action, a motion must be made on behalf of the assignee (McGowan v. Leavenworth, 2 E. D. Smith, 24; Howard v. Taylor, 11 How. 380; 5 Duer 604); or if made by the assignor, it must be on notice to the assignee (id.), and to the parties to the action (Howard v. Taylor, 11 How. 380). The making the order is not a matter of course. The motion must be made within a year from the time of the death or transfer of interest; after the lapse of a year, the right to apply by motion is gone, and a supplemental complaint must be resorted to (Greene v. Bates, 7 How. 296; Coon v. Knapp, 13 id. 175; Gordon v. Sterling, id. 405). Where a plaintiff had, pending the action, transferred his interest and died, and after his death his assignee, on notice to the defendant alone, moved to be substituted as plaintiff, the motion was denied, per Daly, J., for want of notice to the personal representatives of the deceased plaintiff (Franklyn v. Graham, MS.).

f. No leave to serve a supplemental complaint as prescribed by this section is required (Re Borsdorff, 17 Abb. 168; 41 Barb. 211; see Allen v. Walter, 10 Abb. 379; Roach v. Lafarge, 19 Abb. 67).

9. Appeal from orders.-An order admitting (or refusing to admit) an action to be continued in the name of surviving plaintiffs, or in the name of the representatives in interest of the deceased plaintiff, affects a substantial right, and is appealable to the general term (St. John v. Croel, 10 How. 253; Norton v. Wiswall, 14 id. 42-46); but as the granting or refusing an application to permit an action to be continued in the name of an assignee, pending the action, of the cause of action, rests in the discretion of the court, an order

made on such application is not appealable (M'Gown v. Leavenworth, 2 E. D. Smith, 24; Murray v. Gen'l Mut. Ins. Co. 2 Duer, 607).

§ 122. (Am'd 1849, 1851.) Court may determine controversy, bring in parties, &c.—Interpleader.

[1] The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.

[2] And when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.

[3] A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order.

a. Subd. 1.—By the phrase "when a complete determination of the controversy cannot be had without the presence of other parties," is meant that there are persons not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined (McMahon v. Allen, 12 How. 39). If an action is brought to trial upon the answers of some of the defendants only, and the other defendants who are necessary parties have not been served with process, or appeared in the action, the court will not permit the trial to proceed (Powell v. Finch, 5 Duer, 666).

b. When it appears that the presence of other parties than those before the court is necessary to the complete determination of the controversy, it is the duty of the court to order such persons to be made parties (Davis v. Mayor &c. of N. Y. 2 Duer, 663; Shaver v. Brainard, 29 Barb. 25). Although such parties may be non-residents (Sturtevant v. Brewer, 17 How. 571; 9 Abb. 414). Semble, where parties are ordered to be brought in, and the cause stands over in consequence, the defendant is not entitled to any costs;-he should have demurred (Mitchel v. Bailey, 3 Madd. 61); and the order may be made at any stage of the action (State of N. Y. v. Mayor of N. Y. 3 Duer, 121) before judgment (Carswell v. Neville, 12 How. 445). But the court will not order new parties defendant to be brought in, against the will of the plaintiff, unless the presence of such new parties is necessary to the determination of the action (Sawyer v. Chambers, 11 Abb. 110).

a. Subd. 2.—Is confined to actions for the recovery of real or specific personal property (Judd v. Young, 7 How. 79); and does not extend to an action on contract to recover money (id.), nor to an action in the nature of a creditor's bill (Tallman v. Hollister, 9 How. 508); nor to an action to wind up a partnership (Dayton v. Wilkes, 5 Bosw. 655). A partition suit is within this provision; and in such a suit the court may order a person, not a party, but having an interest in the subject-matter, to be made a party (Waring v. Waring, 3 Abb. 246). And in an action for the recovery of personal property seized under an execution against a third party, the plaintiff in the execution is entitled, on applying, to be made a defendant (Conklin v. Bishop, 3 Duer, 646). To entitle the landlord to defend, in his own name or otherwise, he must be shown to be the landlord of the defendant, or have a privity of interest with him in the premises in question (Godfrey v. Townsend, 8 How. 398). As to the right of a stranger to be made a party, see Hornby v. Gordon, 9 Bosw. 656; Scheidt v. Sturgis, 10 Bosw. 606; Kelsey v. Murray, 28 How. 243; 18 Abb. 294; McKay v. Draper, 27 N. Y. 256.

b. Interpleader. This provision is applicable only to cases in which an action is already pending. Where no action is pending, a resort must be had to an action in the nature of a bill of interpleader (Peck v. Stephani, 9 How. 193). A bill of interpleader was one asking no relief against any of the defendants, but merely the direction of the court to which of two adverse claimants the plaintiffs should pay a fund, or deliver property in his hands to which he claimed no right, and further to be protected from such adverse claimants. The only decree to which the complainant was entitled was to be at liberty to bring the fund into court, and have his costs, leaving the defendants to settle the question of ownership between themselves (Bidell v. Hoffman, 2 Paige. 200; Mitchell v. Hayne, 2 Sim. & Stu. 63). This provision of the code is founded upon an English statute, and the decisions on that statute, it is said, may properly be referred to as guides for the interpretation of this section (Sherman v. Partridge, 1 Abb. 260; 11 How. 154). A person in dan ger of being doubly vexed by adverse claimants might always resort to a bill of interpleader (Yates v. Tisdale, 3 Edw. Ch. R. 74; Martinus v. Helworth, 2 Ves. & B. 412). The code has not introduced new cases of interpleader, but merely provides a summary mode of relief (Sherman v. Partridge, 1 Abb. 260; 11 How. 154; 4 Duer, 646; Vosburg v. Huntingdon, 15 Abb. 254). To entitle a party to interplead he must,-admit a right in two or more claimants (Browning v. Watkins, 10 Sme. & M. 482; Desborough v. Harris, 4 De G., M. & G. 439; 31 Eng. Law. & Eq. R. 592); show two or more claimants in existence capable of interpleading (Browning v. Watkins, 10 Sme. & M. 482); show himself to be indifferent to the claims of either party (Marvin v. Elwood, 11 Paige, 374; Oppenheim v. Leo Wolfe, 3 Sand. Ch. 571; Newton v. Moody, 7 Dowl. 582; Van Buskirk v. Roy, 8 How. 425; New Haven R. R. v. Schuyler, 1 Abb. 14, 417; Eagleson v. Clarke, 2 id. 364); that he claims no beneficial interest in the subject of the controversy (Átkinson v. Manks, 1 Cow. 703; Anderson v. Wilkinson, 10 Sme. & M. 601; Moore v. Usher, 7 Sim. 384; Mitchell v. Hayne, 2 Sim. & Stu. 63). Thus, an auctioneer could not interplead as to a deposit in his hands, out of which he claimed his commission (id.; see, however, Bleecker v. Graham, 2 Edw. Ch. 64); nor a wharfinger having a claim for wharfage (2 Mo. & S. 131; 9 Bing. 84); the existence of a lien on the grounds in dispute, and which must be paid by the party entitled, does not prevent an interpleader (Cotter v. Bank of England, 3 Mo. & S. 180; 2 Dowl. 728; and see Lucas v. London Dock Co. 4 B. & Ad. 378); admit a title as against himself in all the defendants (Gwin v. Green, 1 Ire. Eq. R. 229; Anderson v. Wilkinson, 10 Sme. & M. 601); deny collusion with either party (Marvin v. Elwood, 11 Paige, 365; Show v. Coster, 8 Paige, 339; Atkinson v. Manks, 1 Cow. 754; Wilson v. Duncan, 11 Abb. 7); he must not be a wrong-doer, or in default as to either defendant (Shaw v. Coster, 8 Paige, 339; Guin v. Green, 1 Ire. Eq. R. 229; McGaw v. Adams, 14 How. 461; Dalton v. Midland R. R. Co. 12 Com. B. 458); must not by his own act have placed himself in the position to be

sued (U. S. v. Vietor, 16 Abb. 153; 9 Bing. 82; Crawshaw v. Thornton, 7 Sim. 391; 2 Myl. & Cr. 1; Pierson v. Carden, 4 Sim. 218; 2 Rus. & M. 606; Paterni v. Campbell, 3 Dowl. N. S. 397; 12 M & W. 277); must not have accepted an indemnity from either party (Tucker v. Morris, 1 C. & M. 73; 1 Dowl. 639); must be ignorant of the rights of the adverse claimants (Bell v. Hunt, 3 Barb. Ch. R. 391); where a party was taxed in two towns for the same property, when he was liable to be taxed only once (Thompson v. Ebbetts, 1 Hopk. 272; Mohawk R. R. v. Clute, 4 Paige, 384); where a person has purchased property, and payment thereof is claimed by different parties (James v. Pritchard, 7 M. & W. 216; Glyn v. Duesbury, 11 Šim. 139); where a person is a stakeholder, and there are different claimants (Patterson v. Perry, 14 How. 505; Bender v. Sherwood, 15 id. 259; Hoggart v. Cutts, 1 Cr. & Phillips, 197; Atkinson v. Manks, 1 Cow. 730; Wilson v. Duncan, 8 Abb. 354); but he cannot interplead if he is the stakeholder on an illegal wager (Applegarth v. Colley, 2 Dowl. N. S. 223); or if the amount of the stake is disputed (Diplock v. Hammond, 27 Eng. Law & Eq. R. 202). A receiver against whom adverse claims are made may interplead (Winfield v. Baron, 24 Barb. 155). The owner of a building was refused leave to interplead the contractor who erected the building for him, upon claims under the lien law (Dry Dock Metho. Church v. Carr, 2 Barb. 60; Chamberlain v. O'Connor, 8 How. 45). The court refused to allow a savings bank to implead adverse claimants of a deposit in the bank (Lund v. Seaman's Savings' Bank, 20 How. 461; and 23 id. 258). In general, a tenant cannot require his landlord to interplead for the rent with an adverse claimant, yet under certain circumstances he can (see Seaman v. Wright, 12 Abb. 304 ; Badeau v. Tylee, 1 Sandf. Ch. 270).

a. In an action to recover specific personal property, it is a sufficient answer to a motion for an order to interplead, that the defendant is not in a position to deposit the property in court (Vosburgh v. Huntington, 15 Abb. 255).

b. When a party may interplead (Wakeman v. Dickey, 19 Abb. 24; Morgan v. Fillmore, 18 Abb. 217; McHenry v. Hazard, 45 Barb. 657; U. S. Trust Co. v. Wiley, 41 Barb. 477; Trigg v. Hitz, 17 Abb. 436; Schuyler v. Hargous, 28 How. 243; 3 Rob. 673; McKay v. Draper, 27 N. Y. 256; Wash. Ins. Co. v. Lawrence, 28 How. 435; Fletcher v. Troy Savings Bank, 14 How. 383; Van Buskirk v. Le Roy, 8 How. 45; Wilson v. Duncan, 8 Abb. 354; Johnston v. Lewis, 4 Abb. N. S. 150.

c. Costs.-In Miller v. Livingston, 1 Abb. 234, on a bill of interpleader, the unsuccessful claimant was adjudged to pay all costs recovered by the plaintiff, and all costs of his co-defendant, both on the bill, and in an action at law between the claimants.

d. Appeal.-An order substituting an adverse claimant as defendant is appealable (Wilson v. Duncan, 11 Abb. 3); and an order disposing of a fund in court is appealable to the court of appeals (Kirby v. Fitzpatrick, 18 N. Y. .484).