Van Benthuysen agt. Stevens and others. SUPREME COURT. CHARLES VAN BENTHUYSEN agt. AMBROSE STEVENS and others. Where short service of motion papers is made by mail, but actually received, and subsequently, in time, a notice is personally served that at the same special term mentioned in the former notice, a like motion will be made upon the papers, copies of which have been served by mail. The papers, copies of which were served by mail, may be read on the motion. They are none the worse for having come into the possession of the party through the post-office. It is enough that he has them. As to the question, whether the "name of the court," omitted in the complaint, is sufficient ground to set it aside, where the name of the court is contained in the summons, the case of Van Namee agt. Peoble, (9 How, Pr. R. 198,) settles that in the negative. Albany Special Term, Oct., 1856. MOTION to set aside complaint. A summons and complaint were served on the defendant Stevens on the 29th of September. The summons was entitled in the supreme court, but no court is mentioned in the complaint. On the 17th of October, the defendant Stevens, who resides at Batavia, and appears in person, served papers for this motion, by mailing the same at the place of his residence, upon the plaintiff's attorney, who resides at Albany. The term for which the motion was noticed was held on the 28th of October-eleven days after the papers were mailed. The papers were, in fact, received by the plaintiff's attorney on the 19th of October. On the next day the defendant served upon the plaintiff's attorney, personally, a notice that at the same special term mentioned in the former notice he would move upon the papers, copies of which had been mailed on the 17th of October, at Batavia, to set aside the complaint. The ground of the motion is, that the name of the court is not specified in the complaint. W. D. WHITE, for plaintiff. Moseley agt. The Albany Northern Railroad Company. HARRIS, Justice. It was objected, upon the motion, that the papers served by mail, eleven days before the motion, could not be read. I was at first inclined to think the objection well taken but I am satisfied that the defendant was entitled to use these papers in connection with the notice of the motion which had been personally served. When that notice was served, the papers were in the hands of the plaintiff's attorney. They were none the worse for the fact that they had come to his possession through the post-office. It was enough that he had them. Nothing could be gained by delivering new copies. They might be used, not because they had been served by mail, but because, by some means, they had come into the hands of the plaintiff's attorney, and were then in his possession. But upon the merits, this motion must fail. This precise. question was decided in Van Namee agt. Peoble, (9 How. Pr. R. 198.) Though there is a technical omission in the complaint, yet the defendant could not have been injured by it. Under such circumstances, the 176th section of the Code makes it the duty of the court to disregard the defect. The motion is denied, with costs. SUPREME COURT. MOSELEY agt. THE ALBANY NORTHERN RAILROAD COMPANY. Where the plaintiff brought his action against the defendant for the recovery of possession of real estate, and after its commencement all the right, title and interest of the defendant to the property, by operation of law, had been transferred to another, who entered into and held possession thereof, Held, that the original cause of action against the defendant, did not survive or continue against the succeeding occupant, and the latter could not be substituted as a party. But the entering into the possession and occupancy of the premises by the succeeding occupant, would give the plaintiff a new cause of action against him. The first cause of action was a malfeasance personal to that defendant. Moseley agt. The Albany Northern Railroad Company. A cause of action founded in tort, for instance, an entry into the lands of another, and the unlawful withholding from him the possession thereof, is personal to the tortfeasor: it dies with his person, and cannot at common law be continued against his grantee by a transfer of his interest in such real property. Rensselaer Special Term, Dec., 1856. MOTION by plaintiff to amend the proceedings by adding, "The Albany, Vermont and Canada Railroad Company," as defendant. The affidavit on which the motion was founded stated, that the action was for the recovery of possession of real estate; and that, since the commencement of the suit, "The Albany Northern Railroad Company," with all its appurtenances and property, had been sold at auction, and was, including the land in dispute, transferred to one Burden, and that he had sold and transferred the same to a company organized by the name of "The Albany, Vermont and Canada Railroad Company." That such company were the real occupants of and in possession of the same. JOHN J. VIELE, for plaintiff. JOHN H. REYNOLDS, for defendant. PAIGE, Justice. The affidavit on which this motion is founded does not state the nature of the title which "The Albany, Vermont and Canada Railroad Company" acquired under their purchase from Burden, or the title Burden acquired at the auction sale, nor does it state whether either succeeded to the possession of "The Albany Northern Railroad Company." The title acquired by Burden, and sold by him to "The Albany, Vermont and Canada Railroad Company," may have been paramount to that of the plaintiff, and may not have been derived from "The Albany Northern Railroad Company ;" and Burden and "The Albany, Vermont and Canada Railroad Company" may not have succeeded to the possession of "The Albany Northern Railroad Company." Burden may have obtained a possession distinct from that of "The Albany Northern Railroad Company," and transferred Moseley agt. The Albany Northern Railroad Company. such possession to "The Albany, Vermont and Canada Railroad Company." It is manifest that the original cause of action against "The Albany Northern Railroad Company," did not continue against "The Albany, Vermont and Canada Railroad Company" on the latter company becoming the actual occupant of the lands in question. Under the Revised Statutes, (vol. 2, p. 308, § 32, 1st ed.,) in case of the death of the plaintiff, in an action of ejectment, after issue and before verdict or judgment, only the names of those who succeeded to his title could be substituted as plaintiffs. (1 Den. 57; 10 Wend. 540.) It is a well established rule, that a tenant whose possession is entirely distinct from that for which the action is brought, is not affected by a recovery in such action, and cannot be dispossessed under a writ of possession issued therein. (1 Caines' R. 500; Adams on Eject. 309.) "The Albany, Vermont and Canada Railroad Company cannot, under the 121st section of the Code, be added or substituted as a party in this action, unless the cause of action survives or continues in favor of the plaintiff, and against such company. As there is in this action but one defendant, there is no survivorship, as that term implies that the cause of action became vested in or against a survivor. Did the action continue in favor of the plaintiff, and against "The Albany, Vermont and Canada Railroad Company?" If it did not, that company cannot be added or substituted as a party. In Putnam agt. Van Buren, (7 How. Pr. R. 33,) Justice WILLARD, delivering the opinion of the general term of the fourth district, held, that the cause of action for the recovery of land involved two ideas: First, The title of the plaintiff to the premises claimed, and a right to recover the possession thereof: Second, The actual occupancy thereof by the defendant: that, in case of the defendant's death, the second element of the cause of action did not continue; and that, by the death of the original defendant, a new cause of action was given to the plaintiff, provided a new occupant succeeded to the possession. This reasoning is applicable to the present case. Moseley agt. The Albany Northern Railroad Company. An indispensable element of the cause of action for which the plaintiff's action was brought against "The Albany Northern Railroad Company," was the actual occupancy by that company, and their withholding the possession from the plaintiff. This was a malfeasance personal to that company; and when the interest of that company in the premises was transferred to Burden, and by him to "The Albany, Vermont and Canada. Railroad Company," and the latter company entered into the possession, and withheld such possession from the plaintiff, a new cause of action against that company, originating in the malfeasance of the latter company accrued to the plaintiff; but the old cause of action against "The Albany Northern Railroad Company," does not continue against "The Albany, Vermont and Canada Railroad Company." A cause of action founded in tort, as for example, an entry into the lands of another, and the unlawful withholding from him the possession thereof, is personal to the tortfeasor: it dies with his person, and cannot at common law be continued against his grantee by a transfer of his interest in the real property in respect to which the tort was committed. (7 How. Pr. R. 32, 33; Mit. Plead. Jer. ed. 22; 1 Saund. 72; Adams on Eject. 309. See Norton agt. Wiswall, ante, page 42.) The same proposition may be affirmed in respect to a trespass in cutting timber by a tenant at will, or for years; or to waste committed by a tenant for life, or years. In general, where a defendant, in an action for the recovery of real property, transfers his possession pendente lite to a third person, the suit may be continued against the original defendant without notice to the grantee, and upon the judgment and writ of possession in such action, such grantee may be dispossessed. (1 Cai. R. 500; Adams on Eject. 309; 5 Johns. Ch. R. 39; 7 Paige, 21.) The motion, for the reasons above stated, must be denied. As the question arising on this motion is new, in respect to the circumstances under which it is presented, I will deny the motion without costs. |