#### Edward D. Cheney, Plaintiff, *v.*Warner C. Rankin et al., Defendants.

(Supreme Court, Rensselaer Trial Term,

May, 1899.)

Partition — Not abated by death intestate of sole plaintiff — Another action pending — Adjustment of rents and profits collected.

An action of partition does not abate by the death intestate of the sole plaintiff and, in the absence of laches, may be revived by the grantee of an heir-at-law, as being the successor in interest of the intestate. The action, not having abated, constitutes a bar to a new action by a party in interest.

In such an action, rents and profits collected may be adjusted' between the parties.

On the 2d day of September, 1896, Phoebe A. Cheney and-Edward D. Cheney were the owners, as tenants in common, of certain real estate in the city of Troy. On that day an action of partition was commenced by Phoebe A. Cheney, as plaintiff, in which action Edward D. Cheney and Margaret A. Cheney, his wife, Mary C. Perry, Rice C. Bull, Edward McGraw, Rollin 0. Reynolds, Albert E. Grant and Samuel O. Gleason were defendants. Notice of pendency of the action was duly filed on the 4th *610day of September, 1896. The complaint alleges that Margaret A. ■Cheney is the wife of Edward D. Cheney and as such has an inchoate right of dower in the undivided half of said real estate. That the defendant Mary C. Perry is made a party defendant as "the supposed owner of a mortgage upon the whole of said real' estate. That the defendant Rice C. Bull is made a party defend- ' ant as the supposed owner of a mortgage upon the undivided half of the defendant Edward D. Cheney. That the defendants Edward McGraw and Rollin 0. Reynolds are tenants under the defendant Edward D. Cheney, of separate portions of the premises. That the defendant Albert E. Grant is made a party defendant as the supposed owner of a judgment of• foreclosure of a mortgage upon other premises of Edward D. Cheney, and he is made a party "defendant so that the amount of any judgment of deficiency, if the same is entered prior to the determination of this action, may be satisfied in its proper order out of the interest of said Edward L). Cheney. • That Samuel O. Gleason is made a party defendant as the supposed owner of a certificate of tax sale of the whole of said real property. The complaint also alleges that the defendant Edward D. Cheney has ever since the 8th day of November,-1886, received and collected the rents, etc., to his own use and has retained the plaintiff’s share, and the plaintiff desires, pursuant to section 1589 of the Code of Civil Procedure, that the court shall -adjust the rights of said plaintiff and said defendant Edward D. Cheney, in regard to said rents, etc. The summons and' complaint were duly served on all the defendants, and the defendants Mary C. Perry and Samuel 0. Gleason appeared in the action. On the 13th day of March, 1897, Jeremiah K. Long, of Troy, N. Y., was duly appointed referee to ascertain and report the rights,' shares and interests of the several parties to the action in the property described in the complaint and as to the rents collected, etc. On the 27th day of April, 1897, the plaintiff in that action, Phoebe A. Cheney, died intestate, leaving her surviving as her only heirs-at-law two children, Carrie P. Rankin and the said Edward D. Cheney. Edward D. Cheney then became the owner of an undivided three-fourths interest in the said property, and' Carrie P. Rankin the owner of an undivided one-fourth interest therein. "Thereafter Carrie, P. Rankin sold her interest in said premises to ■her son, Warner C. Rankin. No order has been made discontin'uing the action commenced by Phoebe A. Cheney, neither has there "been an order reviving that action. • •

*611On or about the 16th day of October, 1897, said Edward D. 'Cheney commenced another action of partition of the same premises, making Margaret A. Cheney, Bice 0. Bull, Mary C. Perry and Warner 0. Bankin 'defendants. The complaint in this action alleges that Edward D. Cheney is the owner of an undivided three-fourths interest' in the said premises and the defendant Warner 0. Bankin the owner of an undivided one-fourth interest therein. 'That the defendant Margaret A. Cheney is the wife'of the plaintiff and as such has an inchoate right of dower in the plaintiff’s interest in said premises. That the defendant Mary C. Perry is the •owner of a mortgage covering the whole of said premises. That the defendant Bice C. Bull is the owner of a .mortgage covering an undivided one-half interest in said premises. In this action there is no demand for an accounting of rents collected. The defendant Warner C. Bankin appears in the action and sets up the pendency of the former action in abatement and as a bar to this action.

George R. Donnan, for plaintiff.

Lansing & Holmes, for defendant Bankin.

Chase, J.

The cause of action, stated in the complaint in the. -case of Cheney against Cheney and others, survived. As the cause of action survived, the action itself did not abate. Code Civ. Pro., .§ 755.

Section 757 of the Code of Civil Procedure provides: *“*In case of the death of a sole plaintiff * * * 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.”

Phcebe A. Cheney died intestate, and her children, Edward D. ■Cheney and Carrie P. Bankin, were her successors in interest. Warner C. Bankin purchased of Carrie P. Bankin her interest in •said premises and became the successor in interest of the plaintiff to the extent of such share.. McLachlin v. Brett, 27 Hün, 18; Schlichter v. S. Brooklyn Saw-Mill Co., 35 *Hun,-339;*Robinson v. Brisbane, 7 Hun, 180.

The only case of which I am aware holding that a grantee of ¡an heir-at-law is not a successor in interest of the intestate, is thp •ease of Rogers v. Adriance, 22 How. Pr. 97. The opinion in that *612case erroneously construed the provisions relating to the revivor of actions and is overruled by the later cases that I have cited above. Warner C. Rankin being a successor in interest to the plaintiff in the first action is on application to the court entitled, as a matter of right, to an order reviving that action, and such right can only he defeated by his laches. Code Civ. Pro., § 757; Crowley v. Murphy, 33 App. Div. 456.

It has not been suggested that the defendant Rankin in this action has been guilty of laches that would defeat an application, by him for the revivor of the first action, and, in any event, the first action is actually pending until it is discontinued by act of the parties or abated in the manner provided by section 761 of the Code of Civil Procedure; Albert E. Grant, defendant in the first action, and omitted in this action, was an unnecessary defendant. Samuel 0. Gleason, a defendant in the first action, and omitted in this action, is omitted by reason of the fact that the interest alleged to be in him under the complaint in the first action, has been settled and released to other parties to this' action. Edward D. McGraw and Rollin C. Reynolds, defendants in the first action, were made-such as tenants, and now have no interest in the property. The former action was regularly brought; all the parties interested in the property were actually before the' court .and the case had proceeded to a reference when the plaintiff died. The parties to the-first action and their successors in interest are entitled to the benefits of the proceeding already, had and expenses incurred in that action. The proceedings in that action should continue after a revival' as though the persons succeeding to the plaintiff’s interest had been in the action from the beginning. The successors in interest of Phoebe A. Cheney took their interest subject to all incumbrances, including the notice of pendency of the action of partition. The same title is involved in both actions. The purpose of the actions respectively is the partition and sale- of the real estate described and the distribution of the proceeds thereof among the-parties entitled thereto. In the first action an accounting was demanded from Edward C. Rankin of the rents and profits of the-real estate. The successors in interest of Phoebe A: Cheney, are entitled to a' revivor of the action as far as it related to thq partition, of the real estate-without reference to the accounting for rents and. profits. Hoffman v. Tredwell, 6 Paige, 308.

The parties to either action are entitled by virtue of the pro-visions of the Code of Civil Procedure to have the question of rents- *613and profits collected by the several tenants in common settled and adjusted in the action. The parties and cause of action in Oheney v. Cheney are substantially the same in every respect as- the parties and cause of action herein. It is admitted that all the parties necessary to a complete determination among the parties interested were before the court in the first action and that all material questions and rights can be determined in that action. Great confusion and wrong would result if a rule were established which would allow a new action in partition to be brought at any time when a party to a prior action in partition dies, if in the new action an immaterial variation were made in the parties, or an unimportant change were made in the demand for judgment.

The action of Phoebe A. Cheney against Edward D. Cheney and others ought to be, and is, a bar to this action.

Findings and judgment may be prepared accordingly, with costs to the defendant Rankin.

■Judgment accordingly.