#### Charles K. Robinson, Respondent, *v.*Edward R. Thomas and Orlando F. Thomas Appellants, Impleaded with Edwin M. Post.

(No. 1.)

First Department,

January 10, 1908.

Revival of action — defective affidavit by attorney — action for accounting survives — when leave to executors to serve amended complaint unauthorized.

On a motion to revive an action based solely upon the affidavits of an attorney he must show that he was authorized by the executors Of the deceased plaintiff to ■ make the motion; a mere allegation that he is attorney for the executors is insufficient.

On such motion the complaint should be made part of the moving papers, or the nature of the action be clearly shown, for the authority of the court to make the order depends upon whether or no the action survives.

A cause of action to compel defendants to account for moneys received for the benefit of the plaintiff survives the plaintiff's death. •

If a demurrer he sustained bn the ground that there is a defect of parties plaintiff, the defect can be cured only by amending the summons by adding the necessary parties plaintiff. If the defect be an omission of necessary parties • defendant, it can be cured at the instance of the plaintiff' without th.e ' defendants’ consent by serving, a supplemental summ ons.

When on an application to revive an action after the death .of the plaintiff it does not appear that when the court sustained a prior demurrer to the complaint it granted leave to amend the summons or issue a supplemental summons, the • order reviving the action should not authorize the executors to serve an amended- complaint, for if the decedent had that right and the time for serving the pleading has not expired, the executors, upon being substituted, may serve such pleading Under the original authority given to the decedent without further order of the court, and if they need further time or the time has expired, they may, after the revival of the action, apply to the court for* an extension of time or to open the default, whether their own or that of the decedent.

Appeal by the defendants, Edward R. Thomas and another, from .an order of the Supreme Court, made at the New York Special Term- and entered in the office of the clerk of the county of New York on the 12th .day of August, 1907, as resettled by an order entered on the 15th day of August, 1907, granting the plaintiff’s motion for a reargument of a motion to revive the action and"reviving it in the names of the executors of the deceased plaintiff as plaintiffs and permitting them to serve an amended complaint.

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      *Richard A.*Irving, for the appellants.

*Charles S.*Taber, for the respondent.

Laughlin, J.:

We would not review the discretion of the court in granting the motion for a reargument. The relief, however, granted by the court on the reargument was unwarranted by the moving papers. This is the second attempt to revive this action and the papers are still defective. The first motion to revive it was made *ex parte.*This motion on notice was based solely upon, the affidavit of an attorney who states that he is the attorney for the executors, but he does not show that they authorized him to make the motion, a fact which, it was pointed out in *Wilson*v. *Harter*(57 App. Div. 484), should appear either by his affidavit ór by the affidavit, of the executors.' Assuming tliat it might be presumed that the attorney had authority to make the motion, the complaint should have been made a part of the moving papers or the nature of the action,should have been more fully shown, for the authority of the court to make the order depends upon whether the cause of action survives. (Code Civ. Proc. § 757.) The attorney states in his affidavit that" the action was brought to compel the - defendants to account for moneys alleged to. have been received by them for the. benefit of the plaintiff, under an agreement in .writing, and that is not controverted. If the action be to compel the defendants to account" for moneys received by them for the benefit of the decedent, for which they owed him an accounting, the cause of action would, of course, survive. There áre other more serious objections to the order. The authority to serve an. amended complaint' is conferred by the order in general language, with no limitation. - The attorney states in his affidavit that during the lifetime of the original plaintiff a demurrer was interposed to the complaint, and that he is “ informed ”' that it was sustained “ because of a defect of parties,” with leave to the plaintiff to serve an amended complaint, but he does not state the source of his information, nor does he even say that he believes it to be true. This is all that he shows on that subject. If the demurrer was sustained on the ground that there was a defect of parties plaintiff, the defect could only be cured by amending the summons by joining the necessary parties as plain- *413- tiffs, and if the defect was an omission of necessary parties defend- ' ant, that could only be cured at the instance of the plaintiff, without their consent, by serving a supplemental summons. (Code Civ. Proc. § 453.) It does not, however, appear that authority to amend the summons or to issue a supplemental summons was granted. It was doubtless intended, under this order, to authorize the executors to serve an amended complaint, such as the decedent was entitled to serveHn his lifetime, with appropriate allegations with respect to his death and their appointment as executors and the revival of the action, because if as indicated a demurrer to the original complaint had been sustained it would have been futile to have amended it by merely alleging the revival and continuance of .the action. If the original plaintiff at the time of his death was authorized to serve an amended pleading, which he had not served, the facts with respect thereto should have been fully shown to the end that the court might know in what respect he was authorized to amend, and might have given the executors a reasonable time within which to serve an amended pleading, setting up, in addition to the formal matters concerning their right to • continue the action — a practice which, although unnecessary, is customary — the facts which their decedent was authorized to set up by an amended complaint. As has been seen, however, this was not done. Unless a new party defendant was to be brought in without his consent, there was no necessity of serving a supplemental summons or complaint (Code Civ. Proc. §§ 453, 544, 760), and if the cause of action survived and no new party was to be brought in against his will, the motion having been made on the application of the executors, who stood in the right of the original plaintiff, it was not even necessary to serve an amended or supplemental summons and complaint, for no issue could be joined by the pleadings with respect to the right of the executors to be substituted and to continue the action, as these were not issuable facts occurring after its commencement and required to be pleaded in a supplemental complaint (Code Civ. Proc. § 544), and they were to ' be determined solely upon the motion or by appeal from the order granting it. (*Wood*v. Flynn, 30 Hun, 444.) On these facts the order could have been made without prejudice to the proceedings already had in the action, even though the case had proceeded to judgment or an appeal was pending. *(Riley*v. *Gitterman,*24*414Abb. N. C. 89; *People ex rel. Collins*v. Donohue, 19 N. Y. Supp. 36; *Hoeflin*v. Gedney, 23 Misc. Rep. 518.) The order, therefore, in so far as it granted leave to the substituted plaintiffs to serve an amended complaint was unauthorized. If the decedent had that right and the time for serving the pleading had not expired, the executors, upon being substituted, took his place and might serve the pleading under the original authority which the decedent had and- without further order of the court, and if they need» further time or the time has expired, they may apply to the court for an extension of time or to open his or their default.

It follows that the order should be .modified by striking out the pi’Ovision authorizing the plaintiffs to serve an amended'' complaint within twenty days and as so modified affirmed, without costs.

Patterson, P. J., Ingraham, Clarke and Scott, JJ"., concurred.

Order modified as stated in opinion and as modified affirmed, without costs. Settle order on notice.