
    John W. Hunt, Plaintiff, v. Bessie H. Hunt, Appellant. Robert L. Lucas and John E. Harris, as Executors, etc., of John W. Hunt, Deceased, and Others, Respondents.
    Second Department,
    January 17, 1913.
    Husband and wife — divorce —motion for new trial on ground of newly-discovered evidence — stipulation that motion shall not abate in consideration of adjournment — death of husband before hearing — jurisdiction of court to entertain motion—authority of attorney.
    Where, after final judgment for divorce was entered against a wife, she moved to set it aside and to revive the action upon the ground of newly-discovered evidence of the adultery of her husband, and the husband’s attorneys in consideration of a postponement of a hearing of the motion agreed that the defendant should not be prejudiced by the adjournment as to any possible present or future rights in the plaintiff’s property, and that her status should remain unchanged pending the determination of the motion, the court has jurisdiction to entertain said motion, although the husband died before it was brought to a hearing. This is true, although the deceased husband’s representatives cannot be substituted as parties plaintiffs and the case retried.
    The husband’s attorney at law had authority to make said stipulation in his behalf.
    Woodward, J., dissented.
    Appeal by the defendant, Bessie H. Hunt, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of May, 1912, denying the defendant’s motion to set aside interlocutory and final judgments of divorce.
    
      Frank Parker Ufford [Philip Carpenter with him on the brief] for the appellant.
    
      Alfred C. Reeves and Alfred W. Haywood, Jr. [F. M. Etheridge and Ambrose G. Todd with them on the brief], for the respondents Lucas and John E. Harris.
   Thomas, J.:

' The plaintiff died in December, 1910, after final judgment for divorce, entered July 2J, 1910, against the defendant, and pending a motion made by her in October, 1910, to set it aside upon the ground of newly ^discovered evidence of adultery on his part that, proven, would preclude judgment in his favor. In April, 1911, the defendant moved to revive the action and the motion and to vacate the judgment. The executors and trustees and others' interested under the will of the plaintiff lived out of the State and were by order of the court served, by publication, and all save two, one an infant, appeared specially to object to the jurisdiction of the court. The motion was denied solely for want of power to hear it. It is s’tated in the opinion that the parties served were not related to the subject-matter of the action and that the court had not acquired jurisdiction over them. (75 Misc. Rep. 209.) The question'is whether the stipulation made by plaintiff’s attorneys in his lifetime to secure postponements of the hearing of the motion enables the court to decide the motion ready for submission at his death. The consent to the adjournment of the motion was upon the following agreement made with his attorneys: ‘‘This stipulation is upon the understanding that the defendant is not to be prejudiced by this adjournment as to any possible present or future rights in the property of the plaintiff. The defendant’s rights in the plaintiff’s property, and its status as regards the defendant shall remain unchanged pending the determination of this motion.” The agreement, made in view of plaintiff’s serious illness and read in the light of it, in its spirit and scope is that, in consideration of the adjournments, the motion should not abate by his death and that the defendant’s rights in his property should be whatever should come from immediate submission. Had not the stipulation been made, the motion would have been heard with opportunity for decision favorable to the defendant. In short, the plaintiff’s attorneys assumed to say to the defendant that if she would forego the present submission of the motion she would have the right to have it later decided and have all the benefits of its disposition. The existing opposition is that the stipulation saved nothing to the defendant in the motion, which died with the plaintiff, and that all rights dependent upon decision of the motion and which the stipulation was intended to secure, disappeared. By the stipulation the plaintiff gained what he would, and the defendant lost what it vouchsafed to her. Such is the result if the stipulation is unavailable. The defendant had been plaintiff’s wife. He had judgment divorcing her, subject to the power of the court to reverse the judgment upon appeal, or to set it aside for usual causes, and amongst them upon the discovery of evidence of a defense based on his misconduct. The granting of the motion would have vacated the judgment, restored her to the relation of wife, if he were living, and given her what-', ever interest in his property would flow from his death. If he died pending the determination of the motion, with the stipulation faithfully kept, a decision favorable to her would have annulled the judgment of divorce, made her his widow with whatever in his estate the law gave her. To this he through his attorneys agreed. Now it is said that his agreement could not do what it promised because his death obliterated the motion and caused the accompanying stipulation to fail, at least in this action. But he agreed that it should not abate. Shall the rule that such an action abates override his agreement that it shall not abate % No rule or consideration of public policy requires that a man’s promise, given in view of his death possible or probable, may be violated because he dies. There is nothing abnormal or impossible in the execution of the agreement. A man may obtain a judgment of divorce, and the court may reverse it, although pending the appeal he dies without wife and leaving no widow, and by such reversal the defendant become his widow. His cause of action in case of reversal is in that case lost by his death. So it was known that if he died and the motion went against him the case could not be retried. Here he promised that, if given an opportunity to defend the motion, no legal harm from the delay should come to defendant. If he imperiled the retrial of the action in case of his death, he knew the chance he assumed. It was a part of the consideration of postponing the submission.. But it is urged that his attorneys had no authority to make the stipulation in his absence. The stipulation was continued for some time before his death, and it does not appear that he did not know of it or that he repudiated it. It was, however, within their apparent ability to say for him that she should not lose the benefit of submission and possible favorable decision if the due time of submission for determination was postponed. So it was decided in Cox v. N. Y. C. & H. R. R. R. Co. (63 N. Y. 414). There, as here, the action would have abated without the stipulation, but the stipulation, more explicitly expressed, kept it alive. In that case the plaintiff and not the defendant died. But the action in the absence of stipulation would abate in either case, and it, is not logical to say that it would abide in one case and abate in the other. But it is here, if anywhere, that the chief difficulty arises. There is no plaintiff within the possible jurisdiction of the court to be substituted. ■ What, then, would have been the decision in the Cox case had the defendant been a non-resident and jurisdiction of his representatives been impossible ? And what would be done had there been in the case at bar an appeal from the judgment and the plaintiff died pending the appeal ? Would the court be halted and made powerless thereby ? It - is said that Mr. Hunt’s representatives have no cause of action. Peck’s representative had not in the Cox case. The action did not survive as to either. Neither could be related to the subject-matter of the action, although in either case the result would affect them. But if it be decided, as it has been, that Hunt’s executors are not proper parties, that they are not related to the subject-matter, and that the court has not and cannot obtain jurisdiction of them, then the situation must be faced. Take them at their word. If the executors and others under Mr. Hunt’s will have no interest, they need not be considered, and the question then is what can be done. Has the court lost jurisdiction over its own judgment because there is no one who can legally be substituted for the stipulator dying ? Does Hunt’s agreement fail because his will and property and representatives are beyond the State ? He invoked the jurisdiction, possessed its judgment, stipulated continuance of the motion, and the court should not in justice be defeated by the absence of those succeeding to his property. There is no living party plaintiff. There is no novelty in the proposition that the court may continue to consider its own judgment. In behalf of good faith and the fulfillment of obligation, the law finds a way and does not yield readily to technical obstacles. Hunt fairly stipulated that the motion should continue, that is, that it should be heard and decided whether he lived or died. If the stipulation does not mean that, the argument fails. If that is its scope, the court should do what Hunt agreed that it might do. Cannot it do it % In the Cox case it was said: “If the plaintiffs had proceeded with the action in the name of their testator after his death, and obtained judgment, the court would, I think, in view of the stipulation, have refused to set aside the judgment at the instance of the defendant. Is it an insuperable objection to the judgment here that the executors of the original plaintiff became parties to the record, and that objection was taken on the trial that the cause of action did not survive ? I think not; and that the stipulation is a sufficient answer in this case, also.” In Ames v. Webber’s Executors (10 Wend. 624) the trial was had after the death of the defendant in pursuance of a stipulation given during his lifetime, on an application in his behalf at a previous circuit, to put off the trial for the absence of a witness. A writ of error was prosecuted for the reversal of the judgment. The court had refused to relieve from the stipulation (10 Wend. 575). In the Cox case Judge Andrews wrote of it: “ The suit proceeded to judgment against the deceased defendant (10 Wend. 624), and a writ of error brought thereon by his executors was quashed.” I judge that there was no living defendant to the suit when the trial was had and judgment taken. In McGuire v. New York Central & Hudson River Railroad Company (6 Daly 70) there was a stipulation that' in case of the death of the plaintiff at any time before verdict, neither the cause of action nor the action should abate. It was decided that the action after plaintiff’s death could be continued against his executor, but it was said that “the cause could not proceed1 without a plaintiff.” Such statement makes against the present defendant, but as an expression of opinion it should yield to the statement in the Cox case and the decision in Ames v. Webber’s Executors. In Watson v. Watson (1 Hun, 267) there was no stipulation but a motion to set aside a judgment in an action for a divorce for fraud and irregularity in obtaining it was denied. The court said: “The administrator has no power to consent to setting aside the judgment. He has no control or authority over it. There is no pecuniary recovery to be enforced by him. The decree simply dissolves the marriage relation and disposes of the custody of the children, both which are questions in which the administrator, as such, has no legal interest whatever. * * * We cannot avoid the conclusion that the motion was properly denied. An action in the nature of a bill of revivor, bringing before the court all the heirs at law and other persons interested in the real estate left by the decedent, and such persons as may have taken conveyance thereof subsequent to the decree, as well as his representatives, seems to us the only mode in which the relief sought can properly be obtained.” In the absence of stipulation such would be the proper practice, but where the existence, of the stipulation is undoubted it can be enforced by motion in the action in which it is made. (Potter v. Rossiter, No. 4, 109 App. Div. 737.) In Groh v. Groh (35 Misc. Rep. 354) the rule in Watson v. Watson was followed, and there also there was no stipulation. But in the case at bar the motion under the stipulation was continued to November twenty-fifth, and on November 23, 1910, the plaintiff brought an action and stayed on ex parte application the prosecution of the motion, and before the stay could be vacated the plaintiff died, But to this court, before the plaintiff died, should have been submitted this motion for decision, and but for the stay in the action brought the decision would presumably have been made. The position, now that the motion died* affronts not only the stipulation, but good conscience. Its maintenance would be a judicial declaration that the court is powerless over its own judgment, even in a case where there is a stipulation that the action shall live for the express purpose of decision — powerless because the plaintiff, after seeking this jurisdiction, has died leaving his property elsewhere to be administered by foreign executors. True it is admitted, even contended and decided, that the executors are not related to the subject-matter of the action. Their presence as párties would be a mere formality supplying by some fiction a party having no interest in the cause of action save as the reversal of judgment might affect indirectly the decedent’s property. If a fiction is necessary, it is a better one to decide the case as of the date of its due submission, when the real plaintiff was alive, and enter the order accordingly. The foreign persons now denying jurisdiction may not complain, inasmuch as they were invited, if not legally bidden, to appear. But their presence is not necessary and cannot be coerced, and their absence is harmless unless to themselves. It must be kept in mind that the present matter relates solely to the power of the court. What shall be done on the merits receives no attention. But what has been written has reference to the power of the court in the original motion pending before it. The present motion is an original one to obtain, with slight exception, the relief sought in the first motion. The stipulation does not authorize that. It saves the first motion, it does not authorize a new motion after death, aimed against the representatives. But no new motion is necessary, as one is pending and vitalized by the stipulation, and upon filing the stipulation, with proof of pertinent facts such as were brought to court in the motion papers herein, the original motion may be decided as of the time when submission was due. (Bell v. Bell, 181 U. S. 175, 179.) Hence, the court has the power in the present motion to order that the stipulation and affidavits establishing it and proving plaintiff’s death, and the history of the motion, and such other papers as may be pertinent, be made a part of the proceedings in the original motion, and to decide it with such further opportunity to persons to be heard as it deems just.

The present order appealed from should be modified accordingly, and as so modified affirmed, without costs.

Jenks, P. J., Caer and Rich, JJ., concurred; Woodward, J., dissented.

Order modified in accordance with the opinion, and as modified affirmed, without costs. Order to be settled before Mr. Justice Thomas.  