Angell v. Lawton , 21 N.Y. Sup. Ct. 70 ( 1878 )

Davis, P. J.:

Samuel F. Buttenvorth ivas a defendant in this action when the same Avas commenced. Afterwards, and being then a resident of California, he died in that state, leaving a last will and testament, Avhich has been admitted to probate by the court of probate in San Francisco. This action is against all the defendants, to compel a contribution for losses Avhich, as the plaintiff alleges, were suffered and paid by him on a joint undertaking betAveen himself and the defendants for the purpose of speculating in certain stocks. As it appeared on their application for leave to tile a supplemental complaint, the plaintiffs after stating the death of Buttenvorth, the defendant, that he Avas a non-resident of the State, and a resident of California, and had left no property within this State, so that no personal representatives of said Butterworth could be appointed in this State, asked leave to omit his name from the supplemental complaint. The court beloAV granted leave to file a supplemental complaint with that omission. On the death of Butterworth this action did not Avholly abate, but only as to him; and under the statute and the authorities, it is very doubtful whether it could be revived against his representatives. (3 R. S. [5th ed.], 669, § 1; Livermore v. Bushnell, 5 Hun, 285.)

However that may be, the papers sIioav that no authority exists for the appointment of representatives of Butterworth’s estate Avithin this State, nor are there any means or processes by which ■ the representatives, if any there be in California, can be compelled to appear and submit to the jurisdiction of this court, so that the judgment rendered avüI be obligatory upon them in their representative capacity. No case precisely analogous is cited to us, but it is a Avell established rule in the English Court of Chancery that a party not residing within the jurisdiction of the court need not be made a party to the suit. (Story’s Eq. Pl., § 28; Cockburn v. Thompson, 16 Ves., 326; Dorwent v. Walton, 2 Atk., 510; 1 Barb, on Parties, 523; Towle v. Pierce, 12 Met., 329.) But it is insisted that the same rule does not prevail in this State, because the Code provides for service by publication upon non-resident parties to an action. It is very doubtful, hoAvever, Avhether the provisions of the Code extend to such a case as that noAV before us, and it may Avell be questioned whether an attempt to bring in the representatives of Butterworth by order of publication would be of any effect as against them.

It is also insisted that under section 452 of the Code, it is the right of the appellant to have the representatives of Butterworth brought in. That section provides that the court may determine the controvery as between the parties before it where it can do so without prejudice to the rights of others or by reserving their rights, but where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in. In this case, being an action for contribution by the several parties to the original transaction, it does not appear that the court cannot determine the controvery as between the plaintiff and the defendants who still remain parties after the omission of the name of Butterworth from the complaint. This section has been held to mean that the court must direct other parties to be brought in, where a complete determination of the controversy between the parties already before it cannot be had without the presence of such other parties; and we see no reason for supposing that such complete determination as between them cannot be had. The result will be that if upon the trial it appears, as ivas claimed by the appellant that Butterworth’s estate is responsible, nothing will be added to increase the contribution which the plaintiff’s are entitled to against the appellant because of Butterworth’s absence as a party to this action. On the contrary in respect to the contribution due from Butterworth or his estate, the plaintiffs will be obliged to resort to an action against them in California, and the judgment rendered hero will be effectual as against the plaintiff at least to limit the extent of his recovery when he proceeds against such representatives.

We are of the opinion, therefore, that it was not error, although it may have been unnecessary, to give leave to omit the name of Butterworth as a defendant in the supplemental complaint.

The order should be affirmed with ton dollars costs besides disbursements.

Brady and Ingalls, JJ., concurred.

Order affirmed with $10 costs and disbursements.