198 N.Y. 207 | NY | 1910
We think this motion should be granted under section 1299 of the Code of Civil Procedure, which provides that where the appeal is from one court to another an *208
application for an order of substitution must be made to the appellate court, and that where personal notice of the application has been given to the proper representative of the decedent within the state "an order of substitution may be made upon the application of the surviving party." The provisions of section 1298 relate to the disposition of an appeal where a a party thereto dies before it has been heard and it is desired to dispose of the case without the substitution of any one in placeof the deceased party. As was pointed out by CULLEN, J., inRiley v. Gitterman (24 Abb. N.C. 89; affd.,
The motion should be granted.
CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Motion granted. *209