
    Arthur v. Griswold.
    
      Practice—when action in tort surmves—severance— Waiver.
    
    After judgment in favor of plaintiff against G-. and others, in an action for tort pending an appeal, G. died. His executors procured an order substituting them as defendants. The appeal was prosecuted by them, and a judgment ordering a new trial obtained. Held, (1) that the action did not abate as to ■ Gt. (2 R. S 448; Haight v. Hay, 19 N. Y. 464); (3) that as the survivors could not, in an action of this nature, be united with the representatives of G., the proper motion would be for a severance of the action (Union Bank v. Mott, 27 N. Y. 633); (3) but under the circumstances the order of substitution would not be vacated on the application of the representatives of Q-.
    Appeal by plaintiff from an order at special term, vacating an order substituting Elizabeth H. Griswold and others, executrix, etc., of John A. Griswold, deceased, as defendants, in the place of said testator.
    The action was brought by William Arthur against said testator and others, for alleged fraud, etc., for in relation to a corporation. The plaintiff recovered judgment from which defendants appealed. Pending appeal, John A. Griswold died, and his personal representatives procured an order substituting them as defendants. After a new trial had been granted, said personal representatives procured the order appealed from.
    
      C. A. Hand, for appellant.
    
      Wm. C. Holbrook, for respondents.
   Tappen, J.

The points passed upon in the opinion are fully given in the • head-note.

Order reversed.  