
    Powers v. Manhattan Ry. Co.
    
      (Superior Court of New York City, General Term.
    
    March 3, 1891.)
    Res Adjudjcata—Order on Appeal.
    A court of appeals order, reviving and continuing a suit “in the name of M. individually and as executrix, etc.; as plaintiff and respondent therein, in place and stead of” the plaintiff and respondent, who died pending the appeal, is a conclusive adjudication, on a new trial, of the substituted plaintiff’s succession to the rights of the former plaintiff, and her capacity to maintain the action.
    Appeal from special term.
    Mary Powers, individually and as executrix, sued the Manhattan Railway Company. From a judgment entered on a verdict and an order denying motion for new trial, defendant appeals.
    Argued before Sedgwick, C. J., and Freedman and Ingraham, JJ.
    
      Julien T. Davies and Brainard Toller, for appellant. Roger Foster, for respondent.
   Per Curiam.

The action was begun by George I. Leslie as plaintiff. He obtained judgment, and the defendants, after affirmance at general term, appealed to the court of appeals. 24 H. E. Rep. 295. The plaintiff died during the pendency of that appeal. On the application of the present plaintiff the attorney who was the attorney of the former plaintiff moved in the court of appeals “to revive and continue the cause in the name of Mary Powers, individually and as executrix.” The motion was opposed by defendant’s attorney. The court ordered that the motion he granted, “and this cause is revived and continued in the name of Mary Powers, individually and as executrix, etc., as plaintiff and respondent therein, in place and stead of said George I. Leslie. ” On the trial, evidence was given as to the succession of the present plaintiff to the right of George I. Leslie. Ho attention will be given to this evidence, excepting that part of it that consisted of the order of the court of appeals, already referred to. On the trial the defendants’ counsel objected that Mary Powers had no capacity to maintain this action, never having been substituted as plaintiff in this court. This is contrary to the meaning of the order, plainly expressed; and this order is final between the parties, on the assumption that the court of appeals had power to make it. A different conclusion would not be valid, for the court of appeals is the final judge of its own jurisdiction. The adjudication between the parties is final. Smith v. Zalinski, 94 N. Y. 519. It was necessarily involved in that adjudication that the plaintiff had succeeded to the rights of the former plaintiff. On the trial and the argument of the appeal nothing was based upon the fact that the plaintiff sues on an original right as well as on one derived from the former plaintiff. It is said that giving such an effect to the order deprives the defendants of the constitutional right to a trial by jury on the issue of whether the plaintiff succeeded to the rights of George I. Leslie. But the defendants have had a trial by jury, and on that trial any competent evidence of a former adjudication was admissible, and must have its legal qualities and conclusiveness recognized; so that the question is whether it is a fact that at the time of the arguing of the motion in the court of appeals the defendants could maintain the position that their right to a jury trial prevented that court rightfully making any order excepting one of substitution for the purpose of determining the appeal; but the court has finally decided this by making the order as it was made. It does not appear that there was a demand for a jury trial as to the particular matter. The other questions in the case have heretofore been passed upon, and the judgment and order are affirmed, with costs.  