
    Harry Falk, Appellant, v. Henry O. Havemeyer, Respondent.
    ■Second Department,
    May 12, 1911.
    Appeal—reversal for failure to grant motion to dismiss ■—survival of action for negligence.
    The reversal of a judgment for the plaintiff in an action for negligence granted on the defendant’s exception to the denial of his motion to dismiss is granted .upon a question of law only.
    
      Hence, where the defendant in an action for negligence died pending his appeal, and the plaintiff’s judgment is reversed because of-the denial of the defendant’s motion to dismiss, plaintiff is entitled to substitute the executors of the defendant and to continue the action against them, for the reversal is upon a question of law only.
    Appeal by the plaintiff, Harry Falk, from an. order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 21st day of' March, 1908, denying the plaintiff’s motion to be permitted to continue this action against the executors of the defendant.
    
      Henry A. Brann, Jr. [Henry A. Brann with him on the brief], for the appellant.
    
      Edward P. Mowton, for the respondent.
   Kich, J.:

On March 11, 1901, the plaintiff recovered a judgment against the defendant in an action brought to recover damages for an injury alleged to have been sustained through defendant’s negligence. From the judgment and order denying defendant’s motion for a new trial the defendant appealed to this court. On December 4, 1901, while such appeal was pending and undecided, the defendant died testate. On January 10, 1908, the judgment and order were reversed and a new trial granted (123 App. Div. 657). On January 16, 1908, the last will and testament of the deceased defendant was admitted to probate in New York county and letters testamentary duly issued to the executors therein named, who qualified and entered upon the discharge of their duties and are yet serving. On March 5, 1908, the plaintiff moved the court at Special Term for an order directing the substitution of the executors and a continuance of the action, and for amendment of process and pleadings. The motion was denied, and from the order accordingly entered this appeal is taken.

The sole question presented is whether the reversal of the judgment and order was “upon questions of law only.” (See Code Civ. Proc. § 764.) The only question considered on the appeal was, in the language of Mr. Justice Miller, “the exception to the denial of the motion to dismiss,” which was characterized as the question of law.” A motion to dismiss, like a motion for a nonsuit, presents a question of law only, which is whether, admitting all of the facts presented and giving to the plaintiff the advantage of every inference that can properly he drawn from the facts presented, an issue of fact is presented for the determination of the jury. (Kraus v. Birnbaum, 200 N. Y. 130, 133; Carney v. Minnesota Dock Co., 191 id. 301.)

The order must be reversed, with ten dollars costs and disbursements, and plaintiff’s motion for the substitution of the executors of the deceased defendant, the continuance of the action against them, and the necessary amendment of process and pleadings granted, with costs.

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and plaintiff’s motion for the substitution of the executors of the deceased defendant, the continuance of the action against them, and the necessary amendment of process and pleadings granted, with costs.  