
    Eliza L. Moore, Respondent, v. Marie Louise Moore, Individually and as Temporary Administratrix upon the Goods, Chattels and Credits of Gideon E. Moore, Deceased, Appellant.
    
      Objection that a motion is stayed because of the non-payment of costs, when waifeS ■—action to establish a resulting trust — supplemental complaint, when property allowed — the order is improperly stated to be made ' without prejudice to ” certain depositions.
    
    Where the court presiding at a motion, in answer to an objection raised by tlig opposing party, rules that the stay of proceedings resulting from the non-pay* ment by the moving party of the costs of a previous motion could be" at oncff terminated by the payment of such costs, and the counsel for the opposing party states in answer to an offer, of the counsel for the moving party to pay thscosts, that if such was the effect of the payment the moving party might pay the costs later, and the motion is thereupon heard on the merits, and the costó are on the same day paid to and received by the opposing party, the lattef thereby waives whatever objection there might have been to the hearing of thff motion, and cannot urge such objection on an appeal from an order granting itr
    Where an action to establish a resulting trust in real estate, of which a decedent* died seized, is brought against his widow individually and as temporary admin» istratrix of his estate, and a judgment in favor of the plaintiff is reversed oU appeal, upon the ground that the heirs at law of the decedent were not madu parties to the action, and that no will of the decedent devising the real estate in question was proved upon the trial, the court may properly allow the plaintiff to serve an amended and supplemental complaint alleging the probate of ths will of the decedent by which he devised all his real estate to the defendant, and the granting to the defendant of letters of administration with the wilí annexed, and to substitute for the words “temporary administratrix” ths words “administratrix, with the will annexed,” as descriptive of the character in which the defendant was sued as representative of the estate.
    It is erroneous, however, for the court to insert in the order allowing the amend* ment a provision that it is granted “without prejudice to the depositions of the plaintiff and of the witness E. B. Mastic, heretofore taken upon interrogatories herein, or to any other proceedings heretofore had herein,” as the question of the admissibility of the depositions should be determined upon the trial, especially as the facts under which the depositions were taken were not before the Special Term.
    Appeal by the defendant, Marie Louise Moore, individually and as temporary administratrix upon the goods, chattels and credits of Gideon E. Moore, deceased, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 30th day of August, 1899, granting the plaintiff’s motion for leave to serve an amended and .supplemental complaint.
    
      James A. Dunn, for the appellant.
    
      Charles P. Howland, for the respondent.
   Ingraham, :

This action was brought to establish a resulting trust as to certain real estate of which one Gideon E. Moore stood seized at the time ■of his death. A trial at Special Term resulted in an interlocutory judgment in favor of the plaintiff, which, upon appeal to this court, was reversed upon the ground that the heirs at law of the said Moore were not parties to the action, and no will of the said Moore devising the real estate; in question was proved upon the trial. After the .commencement of this action the will of the said • deceased was admitted to probate, and the defendant, the widow of Gideon E., Moore, who had been sued in this action individually and as temporary administrator of the estate of the said Moore, deceased, had been appointed administratrix with the will annexed. The facts .sought' to be alleged by way of amended or supplemental complaint allege the probate: of the will; that by the will 'all of the real estate; .of the testator wás devised to the defendant, Marie Louise Moore,, who had been made a party defendant, both individually and as temporary administrator, she having been appointed such temporary ..administratrix prior to the commencement of the action, and that letters of administration with the will annexed had been issued to the: .said Marie Louise Moore.

The court below granted this motion upon terms, and from the, ■order granting such motion the defendant appeals. A preliminary objection to the hearing of the motion was taken by the defendant upon the ground, that the plaintiff had failed to ■ pay ten dollars: ■costs, which had been awarded upon the denial of the previous motion. It appears that, upon the motion being called for argument, counsel •for the defendant objected to the court’s entertaining the motion upon the ground that, similar motions had been made and denied,, with ten dollars costs, which had not been paid. The court held that, while the payment of costs operated as a stay, that stay could be at, ■once terminated by the payment of the costs. Counsel for the plaintiff then offered to pay the costs, and counsel for the defendant said : “ If the court holds that this is the effect of the payment I will not require it now. Mr. Howland can pay it afterwards.” Whereupon the argument of the motion proceeded on the merits, and the costs were paid on the same day and received by the defendant. We think that whatever objection there was to proceeding with the motion was waived by the action of the counsel for the defendant .accepting the costs and proceeding without further objection with the argument of the motion.

The defendant further objected to the action of the court in substituting for the words “ temporary administratrix ” the words “ administratrix, with the will annexed,” as descriptive of the ■character in which the defendant was sued. The defendant as temporary administratrix was made a party defendant as representing the estate of the deceased, and at the time the summons was served she represented the estate as temporary administratrix.' Subsequent to the commencement of the action letters of administration with the will annexed having been issued to the same defendant, she represented the estate as administratrix with the will annexed. ■Changing the designation under which she represented the estate so .as to make it correctly describe her official position by way of supplemental pleading would seem to be proper. No new person was made a party to the action. The estate represented by the temporary administratrix was a party, and when the defendant’s office .as temporary administratrix was terminated by her appointment as .administratrix with the will annexed, it was- quite proper for the ■court to allow by way of supplemental complaint an allegation of the issuance of the letters of administration and the change of the ■designation under which the defendant represented the estate. As before stated, there was no new party added to the action. The estate represented by its proper officer was a party to the action before, .and the substitution which merely changes the designation by which, the estate is sued makes no substituted change in the parties. Nor is there a new cause of action alleged by the additional allegations in the complaint. There is the same cause of action, but prior to the amendment the complaint failed to allege that the deceased had made a will by which the real estate had been devised to the defendant. That allegation was added by the amendment. So far as the. real estate was concerned the validity of the devise did not depend upon the admission of the will to probate, for the will could have been proved in this action, and the omission from the complaint of the allegation that such a will had been executed, and the failure of the plaintiff to prove the execution of that will upon the trial, was-. held to be error which required the reversal of the interlocutory judgment. The insertion of the allegation as to the execution of the will was simply the insertion of an allegation necessary to the maintenance of the causé of action alleged^ but which had been omitted from the complaint. '

' We think, however, that the insertion in the order of the provision “ and without prejudice to the depositions of the plaintiff and of the witness E. B. Hastie, heretofore taken upon interrogatories ■herein, or to any. other proceedings heretofore had herein,” was unauthorized. The facts under which the depositions of these witnesses were taken were not■ before the court.- The question as to the admissibility of the testimony should be left to be determined -upon the trial, the Special Term, upon this motion, not being in a position to deal with the question. "

The order appealed from should, therefore, be modified by sirik ing out this provision before cited in relation to the depositions of the witnesses, and as thus modified the order appealed from should be affirmed, without costs to either party upon this appeal.

Van Brunt, P. J., ^Patterson, O’Brien and McLaughlin, JJ.r concurred.

Order modified as directed in opinion, and as modified affirmed,, without costs.  