
    Peetsch v. Quinn, No. 1.
    (City Court of New York—General Term,
    November, 1893.)
    On November 16, 1891, the General Term of the City Court of New York handed down a decision affirming an order denying a motion to vacate an order of affirmance. Defendant died the same day about ten a. m., and the order was entered November 20,1891. An appeal was taken on the ground that the order was entered in the names of the original parties, although defendant had died five days before the entry of such order. Held, that in the absence of proof as to the exact time of filing the decision of the General Term, the presumption was that it was filed in defendant’s lifetime, and that the entry of the order on November 20, 1891, was proper under section 763 of the Code of Procedure.
    Appeal from an order. The opinion states the facts.
    
      Johnston & Johnston, for plaintiff (appellant).
    
      Michael H. Curran, for defendant (respondent).
   McCarthy, J.

This is an appeal from an order denying a motion to vacate an order of affirmance in the action, on the ground that the same was entered in the names of the original parties to the action, although the defendant had died five days before the entry of such order. The decision of the General Term was handed down and filed on November 16, 1891, and the defendant died the same day about ten a. m.

According to the papers used on this motion, no time is stated when the decision was filed. The order of affirmance was entered November 20,1891. In the absence of positive proof as to exact time of filing the decision of General Term, the presumption is it was filed during the lifetime of the defendant.

• The order entered on November 20, 1891, was,- therefore, proper and in accordance with section 763, Code of Civil Procedure. This is supported by Long v. Stafford, 103 N. Y. 281.

The case cited by appellants (Corbett v. Twenty-third St. R. R. Co., 114 N. Y. 579) does not apply. In that case a nonsuit had been granted and an appeal taken, and the General Term reversed the order and granted a new trial. Follett, Ch. J., in that case, says : “Neither a verdict nor a report has been rendered in this action. The word ‘decision’ as used in this section, refers to a decision made by a court upon a trial of issues without a jury. (Code Civ. Proc. § 1343, subd. 5.) This action was not.,tried by the court without a jury, and the nonsuit is not a decision within the meaning of section 764. The order of the General Term reversing the judgment entered on the nonsuit was not made upon the hearing or trial of the issues, and is not a decision within the meaning of the section last cited.”

In the case at bar it was an affirmance made upon the hearing and trial of the issues.

Order is, therefore, affirmed, with costs.

Van Wyck, J., concurs.

Order affirmed, with costs.  