| N.Y. App. Div. | May 15, 1900
The defendants appeal from a judgment in" favor of the plaintiff for the sum of $2,124.47, entered on the 8th day of December, 1897. The plaintiff also appeals from certain specified parts of such judgment. On April 10,1899, while these appeals were pending in this court, the plaintiff died. More than three months elapsed without the substitution of another person in his place as plaintiff, and thereupon the defendants applied to this court and obtained from it an order in the form prescribed by section 1298 of the Code of Civil Procedure, requiring all persons interested in the decedent’s estate to show cause why the judgment from which the defendants appealed should not be reversed and why the cross-appeal of the
This-cannot be done in the present;condition of the'action. The person who appears upon the record as the plaintiff, has died, and no argument of the appeal can be had without'the substitution of some one in his place.
Section 1297 of the Code of Civil Procedure provides that where the adverse party has died since the making of an order or the rendering. of a judgment appealed from, the appeal cannot be heard Until the heir, devisee, executor or administrator, as the case requires, has been substituted as the-respondent. If the judgment belonged to the original plaintiff at the time of his death, his administrator must be substituted, and the persons interested in his estate must procure the proper order for this purpose. If, on the other hand, it be true, as alleged in the affidavit of his widow, that the judgment was assigned to her by the plaintiff during his lifetime, she, should procure an’order substituting her as the plaintiff, upon proof of the fact of such assignment. The application for such order substituting the administrator or the assignee of the judgment, as the facts may warrant, should be made to the Special Term of the Supreme Court. The judgment to be reviewed in this case was rendered in the Supreme Court upon the report of a referee. Where the appeal is from one court to another the application is required by section 1299 of the Code t.o be made to' the appellate court. Within the meaning of this section, however, we think that, an appeal to: the Appellate Division from a judgment rendered by
It is proper to make a suggestion as to the notice which may be requisite in order to procure the necessary substitution. If the •claim had been, assigned to the widow before judgment it would probably suffice for her to give notice of her application for substitution to the next of kin of the decedent, under the authority of Schell v. Devlin (82 N.Y. 333" court="NY" date_filed="1880-10-12" href="https://app.midpage.ai/document/schell-v--devlin-3605382?utm_source=webapp" opinion_id="3605382">82 N. Y. 333). Inasmuch, however, as the interest of the original plaintiff was not divested before judgment, it may be doubted whether the widow can now establish her right to be substituted by virtue of the alleged assignment from her husband, without, giving notice of the application to an administrator of her husband’s estate when one shall have been appointed. This question, however,, is one to be determined at the Special Term. It is plain that before we can hear the appeals herein there must be a substitution either .of the administrator of the original plaintiff or of the widow as assignee, if she establishes her title to the judgmént, as such.
The proper order in the premises is a direction that the judgment in favor of the plaintiff be reversed, and the cross-appeal in his behalf be dismissed, with costs, unless within thirty days the proper person has been substituted as plaintiff.
All concurred.-
Judgment in favor of plaintiff reversed, and plaintiff’s cross-appeal dismissed, with costs, unless within thirty days an order is obtained at Special Term substituting the proper party for the original plaintiff herein.