
    Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’ts.
    
      (City Court of New York, General Term,
    
    
      Filed November 27, 1893.)
    
    Appeal—Entry op order op affirmance after death of party.
    A decision of affirmance of a judgment was filed on the same day that the defendant died, and the order was there entered in the names of the original parties. Eeld, that in the absence of positive proof as to the exact time of filing the decision, the presumption would be that it was filed during the lifetime of defendant, and hence the order was proper.
    (Corbett v. Twenty-third St. R. R. Co., 114 N. Y., 579; 24 St. Rep., 538, distinguished.)
    Appeal from order denying motion to vacate an order of affirmance.
    
      Johnson & Johnson, for app’lts; Michael H. Curran, for resp’t.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate an order of affirmance in the action on the ground that the same was entered in the names of the original parties to the action although the defendant had died five days before the entry of such order.

The decision of the general term was handed down and filed on November 16, 1891, and the defendant died the same day about ten A. M.

According to the papers used on this motion, no time is stated when the decision was filed.

The order of affirmance was entered November 20, 1891.

In the absence of positive proof as to exact time of filing the decision of general term, the presumption is, it was filed during the lifetime of the defendant.

The order entered on November 20, 1891, was therefore proper and in accordance with § 763’ of the Code of Civil Procedure. This is supported by Long v. Stafford, 103 N. Y., 281; 3 St Rep., 87.

The case cited by appellants, Corbett v. Tweuty-third Street R. R. Co., 114 N. Y., 579 ; 24 St. Rep., 538, does not apply.

In that case a non-suit has been granted and an appeal taken and the general term reversed the order and granted a new trial.

Follett, Ch. J., in that case says: “ Neither a verdict nor a report has been rendered in this action. The word 1 decision ’ as used in this section, refers to a decision made by a court upon a trial of issues without a jury. Code of Civil Procedure, § 1343, subd. 5.

“ This action was not tried by the court without a jury, and the non-suit is not a decision within the meaning of § 764.

“ The order of the general term reversing the judgment entered on the non-suit was ¿ot made upon the hearing or trial of the issues, and is not a decision within the meaning of the section last cited.

In the case at bar, it was an affirmance made upon the hearing and trial of the issues.

Order is therefore affirmed, with costs.

Van Wyck, J., concurs.  