Opinion
May, 1905.
Abram I. Elkus, for the appellants.
Hoffman Miller, for the respondent Early.
John Yard, for the respondent Dean.
Robert J. Dean was the assignee for the benefit of creditors of the firm of Venable Heyman. He was called upon to account and a referee was appointed to take and state the account and take proof as to the existence, validity and amount of claims of the Western National Bank and Thomas Janney against the assignor and report whether the bank or Janney was entitled to share in the distribution of the assigned estate. Proofs were taken before the referee and the matter was submitted to him prior to June 6, 1902. Robert J. Dean, the assignee, died November 11, 1903. The referee did not deliver a report until December 2, 1903, and that report was filed in the county clerk's office January 28, 1904. On June 2, 1904, letters of administration of the goods, chattels and credits of Robert J. Dean, deceased, were granted to Mary G. Dean. On July 13, 1904, the administratrix was substituted in the place of Robert J. Dean in the accounting proceeding. On the 8th of October, 1904, a motion was made by Thomas Janney, a creditor, to confirm the report of the referee and for a direction requiring the payment of his claim and that of the Western National Bank pursuant to findings of the referee. The motion was opposed by the administratrix on the ground that after the death of her intestate and before she was brought into the proceeding as administratrix the referee was without power to make, deliver or file a report. That contention was upheld by the court at Special Term; the motion to confirm was denied and from the order entered upon such denial the moving creditors now appeal.
That a special proceeding does not abate by any event if the right to the relief sought survives or continues is declared by section 755 of the Code of Civil Procedure. Prior to the amendment of that section in 1891 a special proceeding abated by the death of a party prosecuting or defending. ( Matter of Palmer, 43 Hun, 573; affd., 115 N.Y. 493.) It is also provided by section 757 of the same Code that, in case of the death of a sole party to a special proceeding, if the right to the relief sought in such proceeding survives or continues, the court must upon motion allow or compel such proceeding to be continued by or against his representative or successor in interest. But the provision of that section as to special proceedings does not apply where provision for a continuance has been otherwise made by law. Section 765 of the Code of Civil Procedure provides that title 4 of chapter 8 of said Code, in which all the sections cited are contained, does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him. In that case the verdict, report or decision is absolutely void. This last section appears to refer only to an action. While by the provisions of section 755 the special proceeding does not abate, nevertheless that proceeding is suspended until it is continued by or against the representative of the deceased or the successor in interest. Ample provision is made by law for the continuance of proceedings after the death of the party against whom they were originally instituted, and until a proper substitution is made in place of the deceased party, all proceedings are necessarily arrested. The referee has no power to make or file a report against an original party who has died. It is claimed here that the referee had signed his report and that it was ready for delivery in 1902, but, as is said in Clark v. Pemberton ( 64 App. Div. 417), "the signing of a report is not equivalent to a filing or delivery." The acts of the referee in delivering and of the attorneys in filing the report intermediate the death of the assignee and the substitution of the administratrix as a party to the proceeding, were without authority and cannot be recognized. It is claimed, however, that the provisions of section 755 relating to the continuance of a special proceeding against the representative or successor in interest of the deceased assignee do not apply, because provision for continuance of this proceeding has been otherwise made by law by section 10 of the General Assignment Act (Laws of 1877, chap. 466). By that section it is provided that in case an assignee shall die during the pendency of any proceeding under the act, his personal representative or successor in office or both may be brought in and substituted in such proceeding, and any decree made thereafter shall bind the party thus substituted as well as the property of such deceased assignee. But that provision does not confer upon the referee an authority to perform any act after the death of the assignee and before his personal representative or successor in interest is substituted; and the subsequent appointment of the representative of the deceased assignee's estate in place of the deceased assignee does not validate acts which were invalid at the time they were performed. The proceedings on the accounting before the referee were all apparently regular and valid up to the time of his making a report, but the court below was right in refusing to confirm that report.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.