
    HIGGINS v. MAYOR, ETC. OF N. Y.
    
      N. Y. Court of Appeals ;
    
    December, 1892.
    [Affirming 18 N. Y. Supp. 553 ; s. C., 45 State Rep. 696.]
    
      Parties; substitution upon death '.\ Where the sole plaintiff in an action to compel the determination of a claim to real property died pending the action,—Held, that the devisee of the deceased plaintiff was his successor in interest within the meaning of Code Civ. Pro. § 757—providing that in case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must allow or compel the action to be continued by, or against, his .representative or successor in interest,—and that the devisee could be compelled, on defendant’s motion, tc proceed with the action.
    
      Appeal from an order of the General Term of the Supreme. Court, First Department, affirming an order of the Special Term of that court, directing that the devisee of the deceased plaintiff, in an action to compel the determination of a claim to real property, should be substituted as plaintiff therein, and that he should continue to prosecute such action.
    • Elias S. Higgins, deceased, before his death commenced an action, under Code Civ. Pro. § 1638, et seq., against the Mayor, etc., of the City of New York, t‘o compel the determination of an adverse claim by defendant to the fee of certain property between 43d and 44th streets, in the City of New York, alleged to be owned by plaintiff. The answer of the defendant, among other things, denied the title of plaintiff, and claimed an estate in fee in the premises by reason of its ancient charters; and demanded judgment that plaintiff’s complaint be dismissed, and that defendant have judgment against plaintiff for the possession of the premises, and declaring defendant’s title thereto. Upon the trial of the action, defendant obtained judgment in its favor; and subsequently, upon plaintiff’s motion, such judgment was vacated pursuant to the .provisions of sections 1525 and 1646 of the Code of Civil Procedure, on the payment of all costs by plaintiff. Before the action could be again brought to trial the plaintiff died.
    
      The Special Term, under Code Civ. Pro. § 757, made an order that Eugene Higgins, to whom the deceased plaintiff, Elias S. Higgins, had devised the property in question, should be substituted as plaintiff in the action as the successor in interest of the deceased plaintiff, and that as such successor he should prosecute the action in accordance with the order vacating the judgment.
    
      The General Term, on appeal from the order of substitution, affirmed the order on the ground that the substituted plaintiff as devisee was “ successor in interest ” to the deceased plaintiff within the meaning of Code Civ. Pro. § 757. [Reported in 18 N. Y. Supp. 553 ; S.C., 45 State Rep. 695.]
    The substituted plaintiff appeals to the court of appeals.
    
      Aaron Pennington Whitehead (Martin & Smith, attorneys), for appellant.
    I. The intent of Code Civ. Pro. § 757, is not to compel a devisee to litigate the title to real property against his will, but to enable a plaintiff to. enforce a claim against the executor or administrator of a deceased defendant, or to enable defendant to relieve himself of a burden in like manner (Citing Holsman v. St. John, 90 N. Y. 461 ; Green v. Martine, 1 Civ. Pro. R. 129).
    II. The court has discretion to deny the right of substitution where there has been unreasonable delay (citing Coit v. Campbell, 82 N. Y. 509 ; Lyon v. Park, 111 Id. 350).
    
      E. J. Freedman (William H. Clark, corporation counsel) for respondent.
    I. The appellant herein is the successor in interest to the deceased plaintiff and to the subject matter of the suit (citing Green v. Martine, 1 Civ. Pro. R. 129; aff’d in 21 Hun, 136; Coit v. Campbell, 82 N. Y. 509 ; Schlichter v. South Brooklyn Saw Mill Co., 35 Hun, 339).
    II. Where a sole plaintiff dies and the cause of action survives or continues, the defendant is entitled as a matter of right to an order compelling the action to be continued by his representative or successor in interest (citing Holsman v. St. John, 90 N. Y. 461 ; Wood v. Flynn, 30 Hun, 444; Green v. Martine, 21 Id. 136; Coit v. Campbell, 82 N. Y. 509; McLachlin v. Brett, 27 Hun, 18; Pierson v. Morgan, 44 Id. 517; Lyon v. Park et al., 111 N. Y. 350; Mackay v. Duryea, 22 Abb. N. C. 284; In re Palmer, 115 N. Y. 493 ; Lehman v. Koch, 18 Civ. Pro. R. 301; Benedict v. Cobb, 17 Id. 245 ; Lyon v. Park, 16 Id. 109).
   Per Curiam.

The plaintiff brought this action to compel the determination of a claim to certain real property in New York city, upon which he had constructed certain manufacturing works, and the trial resulted in a verdict of a jury for the defendants. On plaintiff’s motion the judgment entered for the defendants was vacated, pursuant to certain provisions of the Code of Civil Procedure, and a new trial was ordered ; the plaintiff paying all the costs in the judgment. Thereafter, and before the action was brought to trial, he died, and the defendants then applied for and obtained an order substituting Eugene Higgins, as the plaintiff’s successor in interest, as plaintiff in the action, and directing him to prosecute the action pursuant to the provisions of the order which had vacated the previous judgment and had ordered a new trial of the issues. The General Term have affirmed this order, and upon the further appeal to this court of Eugene Higgins, the substituted plaintiff, it is argued that section 757 of the Code did not cover the case of a devisee, nor intend that he should be compelled to litigate the title to real property against his will.

We think the court has not erred in granting the defendants’ application. Under the plaintiff’s will, Eugene Higgins was the devisee of the plaintiff’s interest in the property affected, and by section 757 of the Code, the court was authorized, upon a motion, to compel the action to be continued by the successor in interest of the deceased plaintiff. The words, “ successor in interest,” which are used in the section, refer obviously, to such a case as this.

In Coit v. Campbell (82 N. Y. 509-516) an action' to reach certain lands, the title to which was in defendant,, Palmer, a motion by plaintiff was denied, which sought to' have the executors of Palmer, deceased, substituted as parties to the action in his stead. -In the opinion of this court it was said, and with reference to the language of this section: “ There is nothing to show that Palmer’s executors are his successors in interest in this litigation. It does not appear that he devised the land in question, to his executors, or that they have any interest in it.”

We have no doubt that Eugene Higgins was such a successor to the plaintiff’s interest as was intended to be provided for in the Code, and there is nothing to show that he had renounced his interest as devisee under the will.

It may be further observed that there appears to be much reason in support of the order. The defendants had recovered a judgment upon issues which presented for determination, on the one side, the plaintiff’s claim to the possession of the land, and on the other side, the defendants’ claim to an estate in fee. The judgment having been vacated, and that determination thus lost to the defendants, they should not be deprived of the new trial which was ordered as to the issues presented. If it is of advantage to them that the title should be determined in-this action, they have a reasonable, as well as a clear right to demand its continuation by the person who has succeeded to and represents the plaintiff’s interest.

The order should be affirmed with costs.

All the judges concurred.  