
    Samuel I. Campbell, Plaintiff, v. Albert Friedlander and Marcus Marks, Defendants.
    
      Death of a party pending an appeal — application for the substitution of another party, where made — notice thereof, to whom given.
    
    Where a party to an appeal to the Appellate Division from a judgment of the Supreme Court dies pending the hearing thereof, the case cannot be argued until the proper person has been substituted in the decedent’s stead; the application for an order of substitution should, under section 1299 of the Code of Civil Procedure, be made to the Special Term and not to the Appellate Division.
    
      It seems, that where the decedent’s widow claims that the judgment was assigned to her, notice of her application to be substituted in his stead should be given to the decedent’s next of kin and to his administrator.
    Motion by the defendants, Albert Friedlander and another, upon an order to show cause, in the form prescribed by section 1298 of the Code of Civil Procedure, requiring all persons interested in the decedent’s estate to show cause why the judgment from which the defendants appealed should not be reversed and why the cross-appeal of the plaintiff should not be dismissed and why the defendants should not have such other and further relief as the court might' deem proper.
    
      Edmond E. Wise, for the motion.
    
      Charles S. Simkins, opposed.
   Willard Bartlett, J. :

The defendants appeal from a judgment in" favor of the plaintiff for the sum of $2,124.47, entered on the 8th day of December, 1897. The plaintiff also appeals from certain specified parts of such judgment. On April 10,1899, while these appeals were pending in this court, the plaintiff died. More than three months elapsed without the substitution of another person in his place as plaintiff, and thereupon the defendants applied to this court and obtained from it an order in the form prescribed by section 1298 of the Code of Civil Procedure, requiring all persons interested in the decedent’s estate to show cause why the judgment from which the defendants appealed should not be reversed and why the cross-appeal of the plaintiff should not be dismissed and why the defendants should not have such • other and further relief as the court might deem proper. This order has been duly served upon Genie H. Campbell, the widow of the plaintiff,-and his three minor children'. Upon the return day, Mr. Charles S. Simkins appeared in their behalf and presented an affidavit from the widow alleging that, before the death of her husband, the plaintiff above named, he sold, transferred and' assigned to her the claim set forth in the complaint in this action and the judgment herein, of which she is now the owner and holder. The affidavit also states that no letters of administration have been applied for or issued upon the estate of the plaintiff, because he left no estate at the time of his death. For these reasons the court is asked to deny the motion arising upon the order to show cause, and compel the defendants to proceed with the appeal.

This-cannot be done in the present;condition of the'action. The person who appears upon the record as the plaintiff, has died, and no argument of the appeal can be had without'the substitution of some one in his place.

Section 1297 of the Code of Civil Procedure provides that where the adverse party has died since the making of an order or the rendering. of a judgment appealed from, the appeal cannot be heard Until the heir, devisee, executor or administrator, as the case requires, has been substituted as the-respondent. If the judgment belonged to the original plaintiff at the time of his death, his administrator must be substituted, and the persons interested in his estate must procure the proper order for this purpose. If, on the other hand, it be true, as alleged in the affidavit of his widow, that the judgment was assigned to her by the plaintiff during his lifetime, she, should procure an’order substituting her as the plaintiff, upon proof of the fact of such assignment. The application for such order substituting the administrator or the assignee of the judgment, as the facts may warrant, should be made to the Special Term of the Supreme Court. The judgment to be reviewed in this case was rendered in the Supreme Court upon the report of a referee. Where the appeal is from one court to another the application is required by section 1299 of the Code t.o be made to' the appellate court. Within the meaning of this section, however, we think that, an appeal to: the Appellate Division from a judgment rendered by the Supreme Court is to be deemed an. appeal from one branch to another branch of the same court. It is much more convenient that motions' of this kind shall be heard in the tribunal of first instance so far as possible, and the language of the section seems to contemplate this distinction, assuming as it does that, there are appeals which are not “ from one court to another.” As was said by Mr. Justice Follett in Matter of Barkley (42 App. Div. 597): “ Although the Appellate Divisions have jurisdiction to hear motions in the first instance, they are not required to, and will not, except in cases where some exigency seems to require that they shall do so in the.interest of justice.”

It is proper to make a suggestion as to the notice which may be requisite in order to procure the necessary substitution. If the •claim had been, assigned to the widow before judgment it would probably suffice for her to give notice of her application for substitution to the next of kin of the decedent, under the authority of Schell v. Devlin (82 N. Y. 333). Inasmuch, however, as the interest of the original plaintiff was not divested before judgment, it may be doubted whether the widow can now establish her right to be substituted by virtue of the alleged assignment from her husband, without, giving notice of the application to an administrator of her husband’s estate when one shall have been appointed. This question, however,, is one to be determined at the Special Term. It is plain that before we can hear the appeals herein there must be a substitution either .of the administrator of the original plaintiff or of the widow as assignee, if she establishes her title to the judgmént, as such.

The proper order in the premises is a direction that the judgment in favor of the plaintiff be reversed, and the cross-appeal in his behalf be dismissed, with costs, unless within thirty days the proper person has been substituted as plaintiff.

All concurred.-

Judgment in favor of plaintiff reversed, and plaintiff’s cross-appeal dismissed, with costs, unless within thirty days an order is obtained at Special Term substituting the proper party for the original plaintiff herein.  