
    The Ullman-Einstein Company, Appellant, v. David J. Crimmins, Respondent.
    Third Department,
    March 18, 1915.
    Practice — effect of death of defendant pending motion to open judgment by default—subsequent orders prior to appointment of representative of defendant, and without service upon persons interested, are unauthorized.
    Where, after the granting of an order to show cause why a judgment by default against the defendant should not be opened, and staying all proceedings upon the judgment until the hearing and determination of the motion, and before the return day the defendant dies, an order made upon the return day staying all proceedings until a representative of the defendant can be appointed, and a subsequent order opening the default and an appeal from said orders before the appointment of a representative of the defendant, and without service of notice upon the persons interested in the property or claim, are all unauthorized, because the death of the defendant suspended all proceedings in the action, except to revive it in the name of the legal representatives of the defendant, and the order to show cause continuing the stay until the hearing and determination of the motion to open the default is, therefore, still in force.
    Appeal by the plaintiff, The Ullman-Einstein Company, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 18th day of November, 1913, opening a default, and also from an intermediate order entered in said clerk’s office on the 15th day of October, 1913, staying proceedings herein.
    
      T. B. & L. M. Merchant, for the appellant.
    
      George F. Morss, for the respondent.
   Smith, P. J.:

The situation presented by the papers herein is somewhat complicated. Plaintiff had procured a judgment by default against the defendant named. Upon this judgment execution was issued and a levy made. Thereafter defendant, through his attorney, procured an order to show cause why the said default should not be opened, and in that order to show cause all proceedings upon the judgment were stayed until the hearing and determination of the motion. This order to show cause was returnable October 13, 1913. After the granting of the order to show cause, and upon October eighth, the defendant died. The first order appealed from was made upon the thirteenth of October, and provided that all proceedings be stayed for ten days, “until a representative of the defendant can be appointed, and that the respective parties to this action on or before October 18, 1913, submit their briefs.” Thereafter the plaintiff’s attorneys and defendant’s attorney having submitted their briefs, an order was made opening the said default and allowing the defendant twenty days in which to serve his answer. From these two orders the plaintiff appeals upon the ground that they were improperly made, as at the time of their entry no representative had been appointed for the deceased defendant. The notice of appeal was apparently served upon the county clerk and upon Morss, the former attorney of the defendant Crimmins.

It is not denied that at the time these orders were made no personal representative had been appointed of the deceased defendant. Nor is there any assertion here upon the brief, or claim that at the time this appeal was taken there was any such representative. No substitution has been made in the case, and the notice of appeal is directed to Morss, as the attorney for the defendant respondent.

The death of the defendant suspended all proceedings in the action, except to revive it in the name of the legal representatives of the defendant. (Piering v. Henkel, 2 N. Y. Supp. 113.) The entry of the order postponing the argument, and also the entry of the order setting aside the judgment was, therefore, unauthorized. Equally unauthorized is this proceeding to review those orders. No proceeding can be taken in the action until the representative of the defendant has been brought in, or at least until notice is served upon such representative, or if no representative be appointed, upon the persons interested in the property or claim. The order to show cause continuing the stay until the hearing and determination of the motion to open the default is, therefore, still in force, and the case remains in the exact position in which it was at the time of the death of the defendant. This appeal should, therefore, be dismissed, but without costs.

All concurred.

Appeal dismissed, without costs.  