Nehrboss v. Bliss. est of John and Xavier Batt in certain real property in that county. On May 15th, 1879, a judgment recovered in Erie county, was docketed in the Niagara county clerk's office in favor of the defendant Bliss as survivor of himself and Jerome Pierce and against said John and Xavier Batt. John and Xavier Batt did not redeem within the year allowed by statute. On the 12th day of June, 1880, the defendant produced to the sheriff of Niagara county two transcripts of said judgment, one from the clerk of Erie county and the other from the clerk of Niagara county, also an affidavit reading as follows: "Seth P. Bliss being duly sworn says: that he is the owner and holder of the judgment mentioned in the foregoing copy of docket of judgment, and that there is due and remaining unpaid on said judgment the sum of three thousand and eighty-seven dollars and five cents, this 12th day of June, 1880. "Sworn to, etc. SETH P. BLISS." He also delivered to the sheriff a certificate of satisfaction and paid to him a sum exceeding the amount bid by John Nehrboss with interest, and the sheriff two days thereafter executed and delivered a deed of the premises, to the defendant Bliss. This action was brought against Bliss and the sheriff of Niagara county to have said deed and the redemption by Bliss adjudged null and void for alleged defects in the paper delivered to the sheriff by him. The defects complained of are sufficiently stated in the opinion. Nehrboss v. Bliss. The issues in the action were referred to a referee, who found in favor of the plaintiff. The defendants appealed to the general term of the supreme court in the fourth department, which reversed the judgment. From the order of reversal the plaintiffs appealed to the court of appeals. Joseph B. Seaver, for appellants: ......There is no mention of any assignment from Seth P. Bliss, as survivor, etc., to Seth P. Bliss...... Seth P. Bliss cannot redeem unless he shows the transfer of the judgment to him, which he has not done......The authorities on the subject are strict. People v. Ransom, 2 N. Y. 490; People v. Becker, 20 N. Y. 354; 4 Waits' Practice, 101 to 105; Hall o Thomas, 27 Barb. 55. A strict compliance with the statute is required in this proceeding. Bank of Virginia v. Warren, 7 Hill, 91; People v. Covell, 18 Wend. 598; People v. Sheriff, Broome & Co., 19 Id. 87; Wood v. Moorehouse, 45 N. Y. 368; Merritt v. Johnson, 1 Wend. 46; 7 Hill, 91; Phillips v. Schaefer, 64 Barb. 548;7 Lans. 347, 2 Hill, 51; 7 Id. 174; Waller v. Harris, 7 Paige, 167; Smith v. Miller, 25 N. Y. 691; Gilchrist v. Comfort, 34 N. Y. 235.......He does not own the judgment individually. He is entitled to the assets of the firm for the purpose of settling the affairs of the partnership. People v. White, 11 Rob. 350...... R. L. Burrows (George Wing, attorney), for re spondent: .The statute in regard to the redemption from sales of real estate under execution should be liberally construed...... Van Rensselaer v. Sheriff, 1 Cow. 510; People v. Ranson, 2 Hill, 51; Ex party Newell, 4 Id. 610; People ». Fleming, 4 Denio, 144; Aylesworth Nehrboss v. Bliss. v. Brown, 10 Barb. 171; Ellsworth v. Muldoon, 46 How. Pr. 248.............. DANFORTH, J.-The appellants concede that the only question raised upon the trial was as to the effect of the papers filed for the purpose of redemption. And the precise objection, as indicated by the points submitted by the learned counsel in support of this appeal, is that Seth P. Bliss is described therein as the redeeming party, without words indicating that he is the survivor of himself and Pierce, as he is named in the judgment record under which he sought to redeem. The proceedings are statutory, and it is to be conceded that words cannot be added to, or omitted from the statute for any purpose, but on the contrary its language is to be construed strictly. The defendant claimed the right to redeem under § 1464 of the Code of Civil Procedure. He was therefore required to file in the county clerk's office, or deliver to the sheriff, as evidence of his right, (1) a copy of the docket of the judgment under which he claims the right to redeem ; (2) if that right depended upon any assignment of the judgment, it must also be filed, etc.; and (3) an affidavit made by him, stating truly the sum unpaid upon the judgment. The copy of docket furnished by the respondent described a judgment in which "Seth P. Bliss, as survivor of himself and Jerome Pierce, deceased," is plaintiff. It was accompanied by no assignment or other paper save an affidavit attached thereto, which, so far as material to our present inquiry, is in these words: "Seth P. Bliss being duly sworn, says that he is the owner and holder of the judgment mentioned in the foregoing copy of docket of judgment, and that there is due, etc. Upon the death of Pierce, the legal right, under the firm contracts or causes of action, Nehrboss v. Bliss. and the sole right to collect the partnership debts, remained in the survivor (Viner's Abr., Partners; D. Lindley on Partnership, vol. 1, p. 505; Voorhis v. Childs, 17 N. Y. 354), and vested so effectually that upon his death it would have devolved upon his personal representative, and he alone could sue upon it (1 Williams on Ex. 1585; Copes v. Fults, 1 Sm. & Mar. 623). So if Bliss died after judgment, redemption could have been had under § 1466, by the executor or administrator of Bliss. The right to the cause of action, and to sue therefor, came to Bliss by survivorship, and that is indicated in the title of the judgment. But so completely was it vested that a demand against him in his own right, might have been set off in diminution of his claim as surviving partner (Slipper v. Stidstone, 5 Term Rep. 493; and conversely, French v. Andrade, 6 Term, 582). It follows therefore that as surviving partner he might join in one action a count for a debt due him in his own right, and one due him as survivor (Adams v. Hackett, 27 N. H. 289). Or a plaintiff in an action charging him in his own right, might recover a demand due from him individually, and another due from him as surviving partner (Richards v. Heather, 1 B. & Ald. 29). Therefore, although the action was in his name as survivor, it was his own, and he had the legal title to the judgment, as much so as if the cause of action. had stood in his own right (Kemp v. Andrews, 1 Howes, p. 188, Case 138. Murray v. Mumford, 6 Cowen, 441. Daby v. Ericsson, 45 N. Y. 786). It, therefore, was not necessary for him as redeeming creditor to present any assignment of the judgment to himself, or add to the statement in the affidavit any other words showing his identity with the judgment creditor. He was in law the owner of the judg Clifton v. Brown. ment and appeared to be so on the face of the papers. No other point needs consideration. The redemption, for aught that now appears, was made according to the letter of the statute, and the order appealed from should be affirmed, with costs, and judgment absolute rendered in favor of the defendants and against the plaintiffs, pursuant to their stipulation. "All concur, except TRACY, J., who does not vote." CLIFTON, RESPONDENT . BROWN, EXECUTOR, ETC., APPELLANT. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; MAY, 1882. $ 542. Amending pleading.- Waiver.-Notice of trial. Section 542 of the Code gives a party the right to amend his pleading within the time allowed by law, and his amended pleading must stand, unless it is made to appear that it is amended for the purpose of delay, and that the adverse party would lose the benefit of a term for which the cause was, or may be noticed. The right to amend a pleading under section 542 is not waived by the service of a notice of trial or argument. Where a party notices his cause for trial within the time allowed to his adversary to amend, he does so at his peril. Appeal from order of special term denying motion to strike out the amended complaint. The facts are stated in the opinion. Joseph D. Fay, for appellant: ...By serving notice of trial of the issue of law, plaintiff waived his right to amend the complaint of |