WILLIAM J. LOGAN, Appellant,
THE GREENWICH TRUST COMPANY OF GREENWICH, CONNECTICUT, as Administrator, etc., of GEORGE P. SHELDON, Deceased, Respondent.
APPEAL by the plaintiff, William J. Logan, 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 7th day of December, 1910, vacating a warrant of attachment theretofore issued herein, and an order reviving and continuing the action against the above-named defendant and vacating and setting aside a judgment entered on the 26th day of April, 1910, against said defendant.
John D. Fearhake, for the appellant.
Graham Sumner, for the respondent.
INGRAHAM, P. J.:
The plaintiff commenced this action to recover for the conversion by George P. Sheldon, defendant's intestate, of 100 shares of the capital stock of the Phenix Insurance Company,
which the plaintiff had loaned to the defendant's intestate, and demands judgment for the value of such stock.
The summons was dated on the 18th of December, 1909, and on the same day plaintiff obtained from a justice of the Supreme Court a warrant of attachment, defendant being a non-resident. The affidavit upon which the attachment was obtained complied with the Code of Civil Procedure, and there was no question made but that the attachment was regularly granted. On the same day the sheriff of New York county, under this warrant of attachment, levied upon certain property belonging to the defendant. On the 25th of December, 1909, the defendant died at Greenwich, in the State of Connecticut, where he resided, and on the 14th of January, 1910, the defendant the Greenwich Trust Company of Greenwich, Conn., was appointed administrator of the property of the deceased, and duly qualified as such administrator. The Greenwich Trust Company was a corporation organized under the laws of the State of Connecticut. The defendant had not appeared or been served prior to his death, nor had service of the summons by publication been commenced. On the 15th of January, 1910, plaintiff, upon an affidavit setting forth these facts, obtained an order of the Special Term of the Supreme Court continuing the action against the Greenwich Trust Company of Greenwich, Conn., as administrator of the goods, chattels and credits of George P. Sheldon, deceased, and substituting said corporation as administrator as the defendant in the place of George P. Sheldon, and amending the complaint accordingly. An amended complaint was then filed, in which the defendant was the trust company as administrator of Sheldon. On the same day, January 15, 1910, upon an affidavit stating that this action was commenced against Sheldon by the issuing of a summons and the granting of a warrant of attachment upon which the sheriff had made a levy upon the property of Sheldon and taken such property into his possession; that upon the twenty-fifth of December, subsequent to the levy of the attachment, Sheldon died; that on the 14th of January, 1910, the Greenwich Trust Company of Greenwich, Conn., was appointed administrator of the goods, chattels and credits of Sheldon; that said Greenwich Trust Company of Greenwich,
Conn., as administrator, was by an order of the court duly substituted as defendant in the action in place of the former defendant, Sheldon, now deceased, and that the defendant is a foreign corporation doing business in Greenwich, Conn., an order was obtained directing the service of the summons upon the defendant by publication or allowing, at the option of the plaintiff, service of the said summons and a copy of the complaint without the State upon the defendant personally, and for the deposit of a copy of the summons in a post office directed to the defendant. This summons was duly served by publication as provided for in the order, whereupon on the 26th of April, 1910, upon an affidavit reciting these facts and the service of the summons by publication, that the time for the defendant to appear and answer or demur has expired and that no appearance, answer or demurrer had been received, the plaintiff applied to the Special Term and obtained an order for judgment for the amount claimed, with costs, and judgment was duly entered against the defendant and in favor of the plaintiff upon that order. Subsequently and on August 3, 1910, the defendant, appearing specially 'on all the papers and proceedings had in the above-entitled matter,' moved for an order vacating the warrant of attachment, vacating the order continuing the action against the Greenwich Trust Company as administrator of Sheldon, and the judgment entered therein against the said trust company, this motion being based upon the papers and proceedings had in this action. That motion coming on to be heard, the court, upon the original summons and complaint, the order continuing the action, the amended complaint, the order for the service of the summons by publication, the order for judgment and judgment entered thereon, and the affidavits upon which these various orders had been granted, vacated the warrant of attachment, the order continuing and reviving the action against the Greenwich Trust Company as administrator of Sheldon, and the judgment entered thereon, and from that order the plaintiff appeals.
It is not disputed by the respondent but that the warrant of attachment was valid when granted, and that the levy under it was a valid levy. Section 638 of the Code of Civil Procedure provides that 'The warrant may be granted * * * to
accompany the summons * * *. Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof; or else, before the expiration of the same time, service of the summons by publication must be commenced or service thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act; and if publication has been, or is thereafter commenced, the service must be made complete by the continuance thereof.' And section 416 of the Code of Civil Procedure provides: 'A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction and has control of all the subsequent proceedings. Nevertheless jurisdiction thus acquired is conditional and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act to be done after the granting of the provisional remedy.' When the original defendant died, thirty days from the granting of the warrant had not elapsed, and the action was pending. The court had acquired jurisdiction and had control of all the subsequent proceedings when the defendant died. By section 755 of the Code of Civil Procedure an action does not abate by any event if the cause of action survives or continues. Section 757 of the Code of Civil Procedure provides that 'in case of the death of * * * a sole defendant, 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.' By the death of the defendant, therefore, the action did not abate and the cause of action having survived the ...