
    J. Samuel Lemon, as Administrator, etc., of Hope A. Lemon, Deceased, Appellant, v. Adon Smith, Individually and as Executor, etc.; Harlan P. Smith, Arthur J. Smith and Adon N. Smith, as Executors, etc., of Jonah D. F. Smith, Deceased, Respondents; Ina S. Cowell and Others, Infants, Appellants; and George A. Haven, as Executor, etc., of Samuel R. Smith, Deceased. Esther J. Smith, as Administratrix, etc., of Richard O. Smith, Deceased, Appellant, v. Adon Smith, Individually and as Executor, etc.; Harlan P. Smith, Arthur J. Smith and Adon N. Smith, as Executors, etc., of Jonah D. F. Smith, Deceased, Respondents; Ina S. Cowell and Others, Infants, Appellants; and George A. Haven, as Executor, etc., of Samuel R. Smith, Deceased.
    
      Reference—death of one of several defendants before the coming in of the report.
    
    Where a defendant, without whose presence, although he is a proper party to the action, the issues between the plaintiffs and the other defendants could be determined and a proper- judgment be rendered, dies before the referee, to whom the controversy has been referred, has delivered his report, the case comes within section 759 of the Code of Civil Procedure, and the reference may • proceed without bringing in as a party the successor to the rights and liabilities of the deceased party.
    The death of such a defendant is not a good ground of preliminary objection to a motion, made on the grounds of surprise, irregularities and fraud, to set aside the report of the referee delivered subsequent to such death.
    The report subsequently delivered is valid as between the plaintiffs and the surviving defendants, but is, under section 765 of the Code of Civil Procedure, absolutely void as against the deceased party and those whose interests would be affected by the determination of his rights and liabilities.
    Appeal by the plaintiff in each of the above-entitled actions, and also by the guardian ad litem of the infant defendants in each of the above-entitled actions, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Madison on the 13th day of May, 1897, as amended by an order made at the Oneida Special Term and entered in the office of the clerk of the county of Madison on the 29th clay of May, 1897, denying their motion to vacate, annul and set aside the referee’s report and the order of reference in each of said actions on the grounds:
    Of surprise.
    On the ground of irregularity.
    On the ground of fraud, irregularity and surprise, in this, to wit: That certain ¡exhibits, being.Exhibits' 1 and 3 of November 15, 1893, offered by plaintiffs were furnished the referee by'the defendants in a condition materially different from what they were when received in evidence,, in this, .to wit : That the same were furnished to the referee by defendants as and for the real exhibits and considered by him in deciding a material question of fact involved in both of ¡said actions.
    On the ground of other surprises and irregularities.
    That the orders of reference in both of these actions made on or about November 11, 1891, and entered in Madison county clerk’s office about November 11, 1891, be vacated, annulled and set aside.
    
      Albert C. Tennant, for-the plaintiffs, appellants.
    
      William Man, for the defendant, respondent, Adon Smith.
    
      John E. Parsons, for the defendant, respondent, Harlan P. Smith.
    'S. M. Emdsley, for the defendants, respondents, Arthur J. Smith and' Adon N. Smith as executors, etc., of Jonah D. F. Smith, deceased.
   Landon, J.:

The motion of the plaintiffs to vacate, annul and set aside the referee’s report and ¡decision, and also the order of reference, was denied by the Special Term, not upon the merits, but because of the preliminary objections made by the respondents. The principal objection and the only one we need consider, was, that inasmuch as one of the defendants, Samuel E. Smith, died before the referee délivered his report, his executor not having been substituted as a party in his place, the report and all proceedings in the action subsequent to Ms death, and before the substitution of the executor in his place, were void; and that the executor of the deceased defendant having been substituted in his place, the trial of the action should proceed before the referee as if no report had been made. - As the plaintiffs have not had their motion heard upon the merits, we proceed to examine the preliminary objection which has thus far defeated such hearing.

In section 759 of the Code of Civil Procedure it is provided that In case of the death of one of two or more plaintiffs or one of two or more defendants, if. part only of the cause of action, or part of some two or more distinct causes of action, survives to or against the others, the action may proceed, without bringing in the successor to the rights or liabilities of the deceased party, and the judgment shall not affect him or his interest in the subject of the action.”

Section 765 provides that This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him. In that case, the verdict, report or decision is absolutely void.”

These actions were brought by the plaintiffs against three of the original defendants to set aside the transfers which the plaintiffs made to said* defendants of their interest in the estate of the late Sidney Smith, the plamtiffs alleging that they were induced to make such transfers to said defendants by the fraudulent misrepresentations and concealments of the latter, and they asked that the defendants account and pay over to them the true amount of such interest. Samuel It. Smith was, upon his motion, subsequently brought in as a party defendant, and m his answer he claimed like relief for like cause against the three defendants. He was a proper party to the action; it was convenient to try his cause of action against the three defendants at the same time that the plaintiffs tried theirs, but it is plain that he was not a necessary party because he made the transfer of his interest to the three defendants in pursuance of his separate contract with them, and if he was defrauded, it was not a parcel of the same fraud of which the plaintiffs complain. The issues between the plaintiffs and the three defendants could be determined, and a proper judgment rendered, without the presence of Samuel E. Smith as a party. His alleged cause of action was like that of the plaintiffs, but not the same nor in community with theirs; theirs might have been good, and his'bad.;, therefore,-'when -he died, his cause of action, which ' he' separately asserted in his answer against the three defendants, "was separately suspended; but the .cause of action asserted by the plaintiffs- against the same defendants, and their righit and capacity to prosecute it, were in no way affected, suspended jor abated by his death. And hence, under section 759, the action in favor of.the plaintiffs against the three defendants might proceed.; without bringing on the successor to- the rights or. liabilities of the'deceased party;, arid the referee’s report thereupon was valid as between -the plaintiffs and the three defendants, although -it could in! no wise affect .the deceased party or his interests. • in the subject of the action.

Section 765 declares that this title does not" authorize the entry of the judgment against a party who;,' dies' before a verdict, report or decision is actually rendered against kiln. ' In that ease, the verdict, report .or. decision is absolutely Void. ■' Void as to whom i .'Clearly, as to the .'.party .who is dead, and as to the parties whose'.interests would be affected by the determination óf the-dead man’s rights or obligations."' The dead man has ceased to exist, and any determina- ' tion respecting. him,,his duties or obligations, is .as much of a non-en.tity.as he is,'.and, therefore, is Void; but the report, determination or judgment between the living persons, if' susceptible: of being-made entirely apart from ány rights, Obligations,, acts or.,'interests, of.; the. deceased, and actually so made, should no more be affected by his; decease than by any- immaterial event. To such effect, we think, are the authorities. (Leggett v. Dubois, 2 Paige, 213; Lachaise v. Libby,13 Abb. Pr. 6; Halstead v. Cockroft, 49 How. Pr. 342; Hancock v. Hancock, 22 N. Y. 568; De Agreda v. Mantel, 1 Abb. Pr. 137; Lyon v. Park, 111 N. Y. 356; Webster v. Kings Co. Trust Co., 145 id. 275.)

The report of the referee, as made after the death of Samuel B. Smith, was regular and valid as against the plaintiffs, and-as between them and the" living jdefendants, but was void as to the separate cause of action of Samuel B. Smith against the three defendants.

The learned judge at Special Term, therefore, erred in denying the plaintiff’s- motion because of the preliminary objection.. . The order must be reversed, with ten dollars costs, and disbursements, and the motion remitted to the Special Term with instructions to hear and determine the same upon the merits. (Anderson v. Sherwood, 9 N. Y. St. Repr. 636.)

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion, remitted to the" Special Term with instructions to hear and determine the same upon the merits.  