
    Elias S. Higgins, App’lt, v. The Mayor, etc., of the City of New York, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1892.)
    
    Abatement and bevtvor—Devisee of bead estate—“Successor in interest ”—Code, § 757.
    Where the plaintiff in an action to determine claims to real property died after the vacation by him of the judgment against him, a devisee of plaintiff's interest may he compelled by defendants under § 757 of the Code to continue the action, though against his will. He is such a “ successor in interest” as was intended to be provided for in said section.
    Appeal from judgment of the supreme court, general "term, first department, affirming order substituting Eugene Higgins as plaintiff herein, and requiring him to proceed with the action.
    
      Aaron Pennington Whitehead, for app’lt; D. J. Dean, for resp’t
    
      
       Affirming 45 St. Rep., 696.
    
   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 § 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 defendant’s application. Under the plaintiff’s will, Eugene Higgins was the devisee of the plaintiff's interest in the property affected, and, by § 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 te 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 concur.  