87 N.Y. 503 | NY | 1882
DANFORTH, J., Richard Beckwith, upon inquisition, was found to be a lunatic, and on the 29th of June, 1855, the Supreme Court assumed jurisdiction over his person and estate by the appointment of William W. Beckwith, as committee.
In 1871, on the employment of the lunatic, C., an attorney, sought to supersede the commission, and after a hearing the application was denied.
He then applied to the court for his charges and disbursements in the matter, and a referee was appointed to investigate them; upon his report a portion of the claim was allowed by the Special Term, and an order made requiring its payment. From this order an appeal was taken by the committee to the General Term, and brought to argument in October, 1874. On the 15th of January, 1875, the lunatic died.
On the 22d of January, 1875 — until which time the matter was under consideration by the court — the order was reversed; the motion for compensation denied, and the appointment of the referee vacated. The order of the General Term was duly entered and served on C., on or about the 25th of February, 1875, and on the 1st of May, he appealed from it to the Court of Appeals. On the 20th of January, 1876, administration of the estate of Richard Beckwith was granted to Emily P. Beckwith and others, and they having advertised for claims against the estate, C., in 1877, presented to them a bill of items of his claim aforesaid. They refused to pay it, and thereupon he brought an action against them for the amount, and upon their answer issue was joined therein. *506
In 1878, but whether before or after this action was commenced does not appear, C. moved the Supreme Court at Special Term to revive the proceedings "In the matter of Beckwith," and continue them, against the administrators. The motion was denied. In November, 1878, the issues in the action against the administrators were brought to trial and C. nonsuited, but upon appeal by him to the General Term a new trial was granted.
The appeal to this court from the order of 22d of January, 1875, is said to be still pending, and so, for aught that appears, is the action against the administrators. The present motion seems predicated upon certain other events, viz.: in June, 1879, the then General Term having before it the appeal from the judgment of nonsuit, made an order giving leave "to the proper party to apply for an amendment of its order of January 22, as to its date." Thereupon such proceedings were had as resulted in an order substituting "January 5," in place of "January 22," as the date of the order referred to.
It would have been competent and proper, and in accordance with well-settled practice in such cases, for the court in announcing its decision upon the appeal of the committee from the order allowing costs to C., to make it bear date as of the day when the appeal was submitted, or of any subsequent day before the death of the lunatic, or, having omitted to do so, correct the record afterward; thus by either mode making it conform to the fiction by which parties and attorneys are presumed to be present in court at every stage of an action or proceeding. It was so held by us in this matter, Carter v. Beckwith (
Nor is he one whose "heir, devisee, executor or administrator" can in any event be substituted as respondent in this matter (§ 1297, Code, supra)? First, the application is put by the counsel for the moving party upon sections 1297, 1299 of the Code, supra, and in considering these, Richard Beckwith the lunatic can alone be regarded as the adverse party. Section 1297 provides for a case where the adverse party has died since the making of the order appealed from, and declares, that "in a case prescribed by law, an appeal may be taken, as if he was living," but cannot be brought to a hearing until his representatives have been substituted. Section 1299 designates the court to which application may be made for such substitution. Therefore, to make these provisions at all applicable to his case, it was necessary for the moving party to treat the order appealed from as in fact made before the death of the lunatic.
It stands as of the 5th of January, 1875, and the time to appeal expired in sixty days after service of notice of the order (Code of Procedure, § 331). After that time, if the adverse party had been living, an appeal could not have been taken, and the service of the order under its original date was effectual to limit the time. (Wilson v. Palmer,
The motion should be denied.
All concur.
Motion denied.