
    COURT OF APPEALS.
    The People ex rel. Charles C. Egan, executor, &c., respondent, agt. The Justices of the Marine Court of the City of New York, appellants.
    
      Mmne court of the city of Sew York—may revive an action and continue it against an executor— Code of Civil Procedure, section 316.
    When, during the pendency of an action in the marine court of the city' of New York, the defendant dies, that court may direct the action to he revived and continued against his executors or administrators, and this notwithstanding the fact that the said court would have had no original jurisdiction against such representatives in the first instance.
    
      (Overruling same case in 18 Sun, 333.)
    
      Decided September 21, 1880.
    Appeal from an order of the general term of the supreme court in the first department, affirming an order of the special term making absolute a writ prohibiting the marine court from acting under an order made by Mr. justice MoAdam, one of the judges thereof, continuing an action against the legal representatives of a deceased defendant.
    The facts sufficiently appear in the opinion.
    
      M. & E. Jacobs, for marine court, and Eli Long, for plaintiffs in the original action, appellants.
    
      O. O. Egom,, attorney in person, for respondent.
   Rapallo, J.

— The action against Mrs. Hazard, the relator’s testatrix, was commenced in the marine court in November, 1874, and proceeded to trial and judgment in favor of the plaintiffs. An appeal was taken to the general term of the marine court and there argued on the 2d of January, 1878. On the 30th of January, 1878, and before any decision had been announced by the general term, Mrs. Hazard, the defendant, died.

Letters testamentary were, on the 12th of February, 1878, issued to C. C. Egan, Esq., the relator, as executor of the will of Mrs. Hazard. On notice to him a motion was made by the plaintiffs in the marine court, on the 26th of March, 1878, to continue the action against him as executor, which motion was opposed. An order was thereupon made by the marine court granting the motion.

The general term having in the meantime decided the appeal and entered an order reversing the judgment and. granting a new trial, the plaintiffs, after the entry of the order continuing the action, took steps to bring it to trial, whereupon, on the application of Mr. Egan, the supreme court granted a writ of prohibition prohibiting the marine court from entertaining further jurisdiction of the action and enjoining the plaintiffs from further proceeding therein. The present appeal is from the order granting this writ.

The ground upon which the order was made is, that by the death of Mrs. Hazard the action abated and the marine court had no power or jurisdiction to revive or continue it against her executor.

From the time of its organization the marine court has been denied original jurisdiction in actions against executors and administrators. In the act of 1813, chapter 85, section 106, it was declared that it should have no jurisdiction of actions against executors and administrators as such. In the Code of 1848, section 58, it was declared that it should have jurisdic tion in certain enumerated cases and no others. The first specification was actions similar to those in which courts of justices of the peace have jurisdiction, provided by sections 46 and 47.” By section 47 of the Code of 1848, it 'was provided that no justice of the peace should have cognizance of an action against an executor or administrator as such. This prohibition was thus made applicable to the marine court and has at no time been removed. The various acts of the legislature, from time to time passed since 1848, have added to the jurisdiction of the court in other respects, but none of them has ever made any change in this particular. But, notwithstanding this positive denial of jurisdiction to entertain actions originally brought against executors or administrators, the Code of 1848, section 8, expressly made applicable to actions in the marine and justices’ courts, the provision of section 101 (now numbered 121), which declare that no action shall abate by the death, marriage or other disability of a party if the cause of action survive or continue, but that the court may allow the action to be continued by or against his representative. Hone of the amendments to the Code of 1848 have changed these provisions. Beading them in connection, the rule they established clearly was, that an action could not be brought in the marine court against an executor or administrator as such, but that if after having acquired jurisdiction in an action the defendant should die, the action should not abate, but might be continued against his representative. There is no inconsistency in these provisions. Under that Code the action now in question was brought. It is contended, however, by the relator that by the Code of 1877, the power of the court to continue the action was taken away.

The appellant makes several answers to this claim: First. That, assuming that the new Code contains provisions depriving the court of jurisdiction to continue actions in such case, such provisions are not applicable to pending actions, but only to those commenced after they took effect; that to make them applicable to pending actions, an express declaration that they were so intended was necessary, otherwise the law, as it existed when the action was commenced, must decide the rights of the parties, citing Hitchcock agt. Way (6 Ad. & Ell., 884), and Palmer agt. Conly (4 Den., 376). Without questioning the soundness of this position, I pass to the second point made by the respondent’s counsel, which is that the new Code did not effect any change in respect to the power of the court to continue an action, of which it had acquired jurisdiction, in case of the death of one of the parties. The only-provision claimed by the respondent to have that effect is section 316, subdivision 3, which declares that the marine court “ has not jurisdiction of an action againt an executor or administrator in his representative capacity.” This is the same provision, in substance, which was contained in the act of 1813, and which was, in the Code of 1848, incorporated by reference in the section defining the jurisdiction of the marine court. But in the new Code, as in the old, this apparently positive prohibition is qualified by applying to the marine court provision that an action shall not abate by any event if the cause of action survives, but that in case of the death of a sole plaintiff or defendant the court must allow it to be continued against his representative. This provision for continuing actions is contained in chapter 8, title 4, sections 755, 756; 757 of the new Code. By the explanatory act accompanying the Code (Laws of 1876, chap. 449, sec. 5, as amended by Laws of 1877, chap. 318, sec. 5) it is enacted that the eighth chapter of the Code shall apply to proceedings taken after September 1, 1877, when the Code took effect, in the courts specified in subdivision 4 of the same section. The marine court of the city of Hew York is one of the courts named in subdivision 4. Thus we have a direct recognition of the authority of the marine court to continue an action against the representatives of a deceased party, and the law stands precisely as it did under the former Code. That it was not the intention of the Code to change by implication the existing laws relative to the jurisdiction and powers of the marine court, is apparent not only from the notes of the commissioners but from the explanatory act (Laws of 1876, chap. 449, sec. 7, subd. 1). It would seem sufficiently plain from the provisions already cited that the power to revive an action on the death of a party was not intended to be abrogated, but to put the matter beyond cavil an amendment was made, in 1879, to section 316, subdivision 3, declaring that that subdivision did not prevent the court from continuing an action against the representatives of a deceased defendant. This amendment was simply declaratory and made no new law. The application of the provisions for reviving actions to actions in the marine court had the same legal effect.

The point taken by the relator that the decision of the marine court, general, term awarding a new trial not having been rendered until after the death of Mrs. Hazard, was absolutely void under section 765 of the Code, is not, even if well taken, available on this appeal. The writ of prohibition absolutely prohibits the court from entertaining further jurisdiction in the cause. This cannot be sustained even if the appeal to the general term of the marine court should be regarded as still undecided.

The order allowing the writ affects, we think, a substantial right. It determines the action by precluding any further proceeding therein and deprives the plaintiffs of a legal right. We think it is appealable to this court.

The orders of the general and special terms should be reversed without costs.

All concur, except Folger, Ch. J., not voting.”  