
    John McNulta, Plaintiff, v. Collis P. Huntington, Defendant. George E. Spencer, Respondent; Arabella D. Huntington and Others, as Executors, etc., of Collis P. Huntington, Deceased, Appellants.
    
      Action continued in the name of an assignee of the administrator of a deceased plaintiff— the administrator need not be made a party thereto.
    
    Where a resident of a foreign State brings an action in the State of New York and dies pending its decision, his administrator, appointed in the foreign State, may, if the cause of action survives, assign it, and the assignee will be entitled, under section 757 of the Code of Civil Procedure, to revive and continue the action in his own name.
    The order reviving and continuing the action in the name of the assignee need not direct the administrator of the original plaintiff to be brought in.
    Appeal by Arabella D. Huntington and others, as executors, etc., of Collis P. Huntington, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew "York on the 16th day of April, 1901, substituting George E. Spencer in the place and stead of the original plaintiff, and directing that the action be continued in the name of the said George E. Spencer, as plaintiff, and Arabella D. Huntington and others, as executors, etc., of Collis P. Huntington, deceased, as defendants, and granting leave to said substituted plaintiff to serve a supplemental complaint.
    The action was originally brought against Collis P. Huntington' and Charles F. Crocker to recover the sum of $18,400 on an express contract on their part to pay plaintiff'that amount. The defendant Crocker died in California in August, 1897. On the twenty-fourth of September thereafter, plaintiff, upon due notice to Huntington, moved for an order severing the case, but the court denied the motion upon the ground that the action had abated as to Crocker, and might proceed separately as to Huntington.
    The court, on stipulation of the parties, made an order on the 18th day of October, 1898, referring the case to a referee to hear, try and determine. At. the close of the plaintiff’s case defendant moved for a dismissal of the complaint. Subsequently, and before the decision of this motion, the plaintiff and the remaining defendant died, leaving no party to the action living. Plaintiff at the time of his death was a resident of Cook county^ 111. The Probate Court of that county duly issued letters of administration upon his estate to Laura McNulta, who subsequently assigned the claim, upon which this action is based, to George E. Spencer, a resident of New York city.
    
      Maxwell Hearts, for the appellants.
    
      Herbert Harry, for the respondent.
   Laughlin, J.:.

The cause of action survived and the action did not abate by the death of the parties. (Code Civ. Proc. § 755; Holsman v. St. John, 90 N. Y. 461.)

Foreign executors or administrators may assign a cause of action,, and an action to enforce the same may be maintained in the courts Of this State by the assignee. (Petersen v. Chemical Bank, 32 N. Y. 21; Guy v. Craighead, 6 App. Div. 463.) Counsel for appellant, while not questioning the doctrine .of these cases, contends, upon the authority of Rogers v. Adriance (22 How. Pr. 97), a. Special Term decision made in 1861 under, section 121 of the Code of Procedure, that an action can only be revived in favor of an executor, administrator or heir, and not in favor of the assignee of the executor or administrator of a deceased, party.

The question hinges lipón the proper construction of the first sentence of section 757 of the Code of Civil Procedure, which is a. re-enactment of a similar provision of section 121 of the Code of Procedure, and reads as follows:

“ 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 comjiel the action to be continued by or against his representative or successor in interest.”

We see no reason for placing a narrow technical construction on this statute. The foreign executors or administrators would have the right, upon taking out ancillary letters in this State, do be substituted as plaintiffs. We.know of no law that would then prohibit, their assigning the cause of action to Spencer, and the court might then substitute him ¡as plaintiff. (Code Civ; Proc. § 756.) A eon. struction which authorizes tlie assignment of the cause of action by the foreign administrators or executors without requiring that the action be first revived in their names can affect no vested right of the defendant, and will enable the settlement of the estate of such deceased parties without awaiting the result of protracted litigation in foreign jurisdictions. An assignee of the administrator of a deceased party plaintiff is the “ successor in interest ” of such deceased party within the intent and meaning of this provision of the Code, and it has been »o held in a similar ease in the General Term of this department. (McLachlin v. Brett, 27 Hun, 18.) An appeal in that case was dismissed by the Court of Appeals without opinion (90 N. Y. 653). If the Legislature intended to confine the revival of an action in such case to the immediate successor in interest of the deceased party, we think more appropriate words would have been employed to express that .meaning.

We are of the opinion, therefore, both upon principle and upon authority, that the assignee of the foreign executor or administrator of a deceased party plaintiff may revive and continue the action in his own name.

It is further objected that the order is invalid in not requiring the bringing in of the personal representative of Crocker, and. directing the continuance of the action against her also as defendants. Such administrators would not be bound by the proceedings already had in the action. The plaintiff was entitled to the benefit • of such proceedings, including the evidence presented to establish his case. We deem this objection, therefore, untenable.

The order should be aifirmed, with ten dollars costs and disbursements.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Order aifirmed, with ten dollars costs and disbursements.  