
    James K. Place, Substituted in place of Barker Place, Resp’t, v. Jedekiah K. Hayward, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1S88.)
    
    1. Parties—Substitution of new party—Executor after removal may PROSECUTE AN APPEAL.
    Th;s action was begun in the name of Barker Place, as executor, etc., against the present defendant. Final judgment was for the defendant. Barker Place, as executor, etc., appealed from this judgment to the general term. Meanwhile proceedings were taken in the surrogate’s court resulting in the removal of sa'd Place as executor, and the appointment of Emeline Hayward. It appeared in proceedings for substituting a new plaintiff that James K. Place, the substituted plaintiff, was a legatee by the will, and that Mrs. Hayward refused to prosecute the appeal. Thereupon the order appealed from was made that James K. Place be substituted as plaintiff. Held, that the removal of Barker Place, as executor, did not of itself affect this litigation. That he had the power to allow a party in interest to prosecute the appeal for the purpose of reversing the judgment. That Mrs. Hayward could not prevent such a prosecution of the appeal, excepting by some application to the court. That upon such application the court could determine what were the rights of James K. Place.
    2. Same—Substitution of fabtv in interest on appeal—Code Civ. Pno., 1296.
    Code Civ. Pro., § 1296, is not applicable to this case. Under the said section, a party in interest, to be made a party to an appeal must succeed wholly to the right of the party of record.
    Appeal from order substituting James K. Plaqe as plaintiff, in the stead of the former plaintiff.
    The action was begun in the name of Barker Place, as ■executor, etc., against the present defendant. Final judgment was for the defendant. Barker Place, as executor, etc., appealed from this judgment to the general term. Before the appeal was taken, proceedings were begun before the surrogate to remove Barker Place, as executor. The surrogate, after the appeal, made a decree removing him, and revoking the testamentary letters that had been issued to him. Afterwards, James K. Place, named in the title of this proceeding as plaintiff, made petition to the surrogate, that letters of administration with the will annexed, be issued to him, Place. In answer to this, Mrs. Emeline Hayward claimed that there was no occasion for making an appointment at all, and that if there was such occasion, letters should be issued to her. The surrogate determined that the claim in the present action was an unadministered asset of the estate, and therefore the surrogate had jurisdiction to appoint an administrator, and that Mrs. Hayward was entitled to the letters.
    On the application below, it appeared that James K. Place, was a legatee by the will, and that Mrs. Hayward refused to prosecute this appeal. Thereupon the order appealed from was made, that James K. Place be substituted as plaintiff. The defendant and Mrs. Hayward severally appeal.
    
      George H. Phelps, for app’lt; Charles F. Wells, for resp't.
   Sedgwick, Ch. J.

The objections made that the action was not by the original plaintiff, as representing the testator, and that, if the substitution is allowed, the defendant cannot maintain certain offsets and counter-claims of the answer, do not call for a reversal of the order. The surrogate determined that the basis of his jurisdiction to appoint an administrator, was that the claim in the present action was an unadministered asset. On the other hand, the question on the appeal from the judgment is whether it should be affirmed or reversed. Tliis will involve the }égal relation of defendant’s alleged counter-claims and offsets to the claim as made by the original plaintiff, Barker Place, as executor. No question can arise as to the right of defendant to set up the counter-claims and offsets against the substituted plaintiff.

I am however, of the opinion that Mr. James IC. Place showed no reason for liis being made a substituted plaintiff, as long as Barker Place, as exi-cntor, etc., remained plaintiff of record. As Mrs. Hayward, as administrator, was not a party to the action, no question could be litigated between her and Mr. James K. Place. Perchance, she might have a right to apply to be substituted, and might be made plaintiff. Until tin's Was an accomplished fact, Mr. Barker Place, as executor, was plaintiff and had sole right to be so deemed. Although he had -been removed as executor, his removal did not, of itself,- affect this litigation. As to it, he had the power to allow a party in interest, such as Mr. James K. Place is assumed to be, to prosecute the appeal for the purpose of reversing the judgment. Anti on the facts that appeared on the motion below, Barker Place was not unwilling to permit this to be done. Mrs. Hayward could not prevent such a prosecution of the appeal, excepting by some application to the court. Upon such application, the court could proceed to determine what were the rights of Mr. James K. Place.

I therefore think that no case was made on the merits for the substitution ordered below.

Section 1296 of the Code of Civil Procedure, is not applicable to this case, and its terms imply a party in interest in order to be made a party to'an appeal, under its pro visions, must succeed wholly to the right of the party of record.

Order reversed, with ten dollars costs.

Freedman and Ingraham, JJ., concur.  