By the Court.*—

—[After stating the facts.]—The action did not abate as to Griswold, and sounding in tort, it survives against his representatives (2 Rev. Stat., 448 ; Haight v. Hayt, 19 N. Y, 464).

Inasmuch as the surviving defendants, who are principals, may not be joined in an action of this nature with the representatives of the deceased Griswold, the proper practice seems to be, to move for a severance of the action (The Union Bank v. Mott, 27 N. Y., 633).

At all events, these representatives having voluntarily come into the action, and having obtained judgment in their favor, directing a new trial, the court will not now, on their application, vacate the order of substitution, which they obtained.

The order of special term, vacating the order of substitution, should be reversed, with ten dollars costs.