
    Elias S. Higgins, Pl’ff, v. The Mayor, etc., of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Abatement and revivor—Devisee of real estate—Action to determine claim TO.
    Where the plaintiff in an action to determine claims to real property has died after the vacation of a judgment against him, the action may he revived against a devisee of the subject matter of the suit, and he may he compelled, to proceed therein.
    2. Same—New trial.
    The devisee takes his devise subject to all its incumbrances, of which the pendency of the action is one, and cannot complain that the order of substitution deprives him of the right to a new trial, to which he would be entitled under the Code if the action had not been commenced by his predecessor.
    Appeal by Eugene Higgins from order substituting him as plaintiff herein, and requiring him to proceed with the action.
    
      A. P. Whitehead, for app’lt; F. J. Freedman, for resp’t.
   Per Curiam.

One Elias S. Higgins brought an action against the mayor to compel the determination of á claim to certain real property situated within this city under the provisions of § 1638 of the Code. The plaintiff was defeated in the action and afterwards on motion the judgment in favor of the defendant was vacated pursuant to the provisions of §§ 1525 and 1646 of the Code. The plaintiff paid all the costs of the judgment. The plaintiff having died and having devised the subject matter of the suit to one Eugene Higgins, this motion was made under § 757 of the Code to substitute Eugene Higgins, his devisee, in his place and compel him to proceed with the action. Against the objection of said Eugene Higgins the court made the order which is appealed from.

The principal ground urged in support of the appeal is that no case can be found in which the devisee of a deceased plaintiff has been compelled to come into court against his will and liti- » gate the title to lands.

Section 757 of the Code provides that in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must upon a motion allow or compel the action to be continued by or against his representative or successor in interest.

Eugene Higgins has beyond question succeeded to the interest of the deceased plaintiff in the subject matter of this action, and would therefore seem to come within the provisions of this section of the Code. It cannot be that litigations which are instituted by the owners of real estate for the purpose of determining the claims thereto can be relieved from all the effects of such litigation, provided they have not been finally determined, by reason of their death. There can be no question that, had the said Eugene Higgins, the devisee of the plaintiff, elected to proceed with this action, he would have been entitled as a matter of right to have been substituted, and to have derived all the benefits which might have accrued from a favorable adjudication thereon.

Now, can it be said, because the adjudication has been adverse, that therefore.he cannot be brought in as the successor in interest and be bound by such adjudication ?

The claim that the order appealed from deprives the appellant of a new trial of this action, which he is entitled to under the provisions of the Code had this action never been commenced by his predecessor in title, does not seem to have any weight, because when he takes the devise, he takes it subject to the incumbrances which his predecessor placed upon it, and one of these incumbrances is the pendency of this action brought to determine a claim of title to that property.

The appellant seems to come clearly within the provisions of the Code, and therefore the order was properly made and should be affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., O’Brien and Ingraham, JJ., concur.  