
    MARY POWERS, Individually and as Executrix, etc., Respondent v. THE MANHATTAN RAILWAY COMPANY, Appellant.
    
      Revivor, general order for by Court of Appeals after argument, effect of
    
    This action was originally brought by George J. Leslie, as trustee for Frances A. Leslie, as plaintiff, and the first trial resulted in a judgment for the plaintiff.* Pending an appeal by defendant to the Court of Appeals from this judgment, both George J. Leslie and Frances A. Leslie died. Frances A. Leslie left a will whereby she devised all her real and personal estate to Mary Powers and appointed her sole executrix. Thereafter Mary Powers (pending said appeal) moved in the Court of Appeals, ' the attorney for the former plaintiff making the motion, for an order to . “ revise and continue the cause in the name of Mary Powers individually ■ and as executrix, etc.” The motion was opposed by the defendant-appellant. The court ordered that the motion be granted and that “ this cause is revived and continued in the name of Mary Powers individually and as executrix, etc., as plaintiff and respondent therein in the place and stead of George J. Leslie.” Reid, that the order of the Court of Appeals was a final adjudication between the parties; that the executrix had succeeded to the rights of the former plaintiff and that the Court of Appeals had jurisdiction to make it, and was conclusive evidence of such succession on a subsequent trial of the action.
    
      Note.—This judgment was reversed by the Court of Appeals (120 N. Y. 178). The question considered in above opinion arose on the re-trial of the action.
    
      Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided March 3, 1891.
    Appeal by defendant from judgment entered upon verdict of jury and from order denying motion for a new trial made upon the judge’s minutes.
    The facts sufficiently appear in the opinion and the head note.
    
      Davies & Rapallo, attorneys, and Julian T. Davies and Brainard Tolles of counsel for appellant, on the question considered in the opinion, argued :—
    Mary Powers has no capacity to maintain this action, never having been substituted as plaintiff in this court. When the order of the Court of Appeals substituting Mary Powers as respondent in that court was offered in evidence on the trial of this action defendants’ counsel objected to it as incompetent, improper and immaterial in this action. At the close of the plaintiff’s case a motion was made to dismiss the complaint on the ground that the (acting) plaintiff had no legal capacity to maintain the action. The order of the Court of Appeals could only have been made under section 1299 of the Code of Civil Procedure. That section defines the only instance where i.t is proper to apply to appellate court for an order of substitution, viz.: where an appeal is taken from one court to another, an application for an order of substitution as prescribed in sections 1296, 1297 and 1298 must be made to the appellate court. The sections referred to relate only to substitutions, for the purpose of conducting the appeal. Section 1296 refers to substitutions for the purpose of taking an appeal. Section 1297 refers to substitutions upon motion of the adverse party, for the purpose of enabling an appeal to be heard. Section 1298 relates to the disposition of appeals where the proper representatives of the deceased party fail to make an application for substitution within three months. When, therefore, the order in question was made by the Court of Appeals, all that was determined by it was that Mary Powers was a proper person to be heard in that court in support of the judgment. This was a very natural conclusion, inasmuch as she was the only person who applied for leave to be heard, and her application was ex parte with respect to other possible claimants to the cause of action represented by the judgment. The order of the Court of Appeals did not, therefore, obviate the necessity of proceeding under section 757 of the Code, in order to determine who was actually vested with the title to the cause of action and to the control of the general conduct of the cause upon the granting of a new trial. In Rose v. Hawley, 118 N. Y. 502, which was an appeal from an order granting a new trial in an action of ejectment, in which plaintiff had a verdict, a motion was made in the Court of Appeals by an alleged purchaser of plaintiff’s' interest on an execution sale to be substituted as appellant, and the motion was resisted by the original appellant. The same division of the Court of Appeals which made the order in the case at bar granted the motion in Rose «. Hawley so far as to allow the applicant to be heard in that court, upon the express ground that the order applied for affected only the conduct of the appeal in that court, and could not operate as an adjudication of the applicant’s title to any portion of the cause of action. This decision is in accord with the general rule that the function of an appellate court is solely to determine the correctness of judgments at the time they are rendered, and that all its acts are to be taken as having reference to that end. It is incredible - that the legislature intended to impose on an appellate court the duty of determining upon the merits the course of devolution of title to judgments after they are entered. A very brief consideration will show, how impossible it is to give such a construction to section 1299. Appeals may be taken to the Court of Appeals from interlocutory judgments and orders, and such appeals do not necessarily involve the staying of proceedings in the court below. Code of Civil Procedure, § 199. Suppose an appeal were taken to the Court of Appeals from an order striking out a demurrer as frivolous, and, pending the hearing of the appeal, one of the parties were to die. Can it be supposed that all proceedings in the court below would be compelled to await the determination by the Court of Appeals of the question of who was to be heard on the subject of the frivolity of that pleading ? Undoubtedly a motion for substitution under section 1299 would have to be made in the appellate court. But such a motion would relate only to the conduct of the appeal, and all matters affecting the general conduct of the action would have to be determined in the court of original jurisdiction. It was intimated in Smith v. Zalinski, 94 N. Y. 519, 524, that in a common law action a right to a jury trial existed as to every question of fact (including questions relating to any alleged successorship' in title to the cause of action), and that upon a motion for substitution in such an action the court should, if either party demanded it, order supplemental pleadings to be served, so that the issue might be tried, like the other issues, by a jury. It is obvious that this relief could not be granted by the Court of Appeals upon an application under section 1299, and it is therefore apparent that an order under that section in a common law action cannot be conclusive upon the question of title to the cause of action, but only upon the prima facie right to be heard upon the appeal in that court. Section 194 of the Code provides that “ the judgment or order of the Court of Appeals must be remitted to the court below, to be enforced according to law.” The order in question has never been remitted to this court by the Court of Appeals, and has never been adopted by this court or made the judgment of this court. It is not to be found upon the records of this court and forms no part of the judgment roll. There is to-day no suggestion in the judgment roll of the death of George J. Leslie, and no reason appears from the judgment roll for entering judgment in the name of Mary Powers as plaintiff instead of between the parties designated by the pleadings.
    
      Roger Foster, attorney and of counsel, for respondent, on the question considered in the opinion, argued :—
    The order of the Court of Appeals conclusively established the fact that the present plaintiff had acquired the cause of action held by the original plaintiff.
   Per Curiam.

The action was begun by George J. Leslie, as plaintiff. He obtained judgment and the defendant, after affirmance at general term, appealed to the Court of Appeals. The plaintiff died during the pendency of that appeal. On the application of the present plaintiff, the attorney who was the attorney of the former plaintiff moved in the Court of Appeals “ to revive and continue the cause in the name of Mary Powers, individually and as executrix, etc.” The motion was approved by defendant’s attorney. The court ordered that the motion be granted, and this cause is revived and continued in the name of Mary Powers, etc., as plaintiff and respondent therein, in place and stead of said George J. Leslie.”

On the trial evidence was given as to the succession of the present plaintiff to the rights of George J. Leslie. No attention will be given to this evidence excepting that part of it that consisted of the order of the Court of Appeals already referred to.

On the trial the defendant’s counsel objected that Mary Powers, held no capacity to maintain this action, never having been substituted as plaintiff in this court. This is contrary to the meaning of the order, plainly expressed, and this order is final between the parties on the assumption that the Court of Appeals had power to make it. A different conclusion would not be valid, for the Court of Appeals is the final judge of its- own jurisdiction. The adjudication between the parties is final. Smith v. Zalinski, 94 N. Y. 519. It was necessarily involved in that adjudication that the plaintiff had succeeded to the rights of the former plaintiff. On the trial and the argument of the appeal nothing was based upon the fact that the plaintiff sues on an original right as well as on one derived from the former plaintiff.

It is said that giving such an effect to the order deprives the defendant of the constitutional right to a trial by jury on the issue of whether the plaintiff succeeded to the rights of George J. Leslie. But the defendant has had a trial by jury, and on that trial any competent evidence of a former adjudication was admissible, and must have its legal qualities and conclusiveness recognized. So that the question is, whether the fact that at the time of the arguing of the motion in the Court of Appeals the defendant could maintain the position that its right to a jury trial prevented that court rightfully making any order, excepting one of substitution, for the purpose of determining the appeal. But the court has finally decided this by making the order as it was made. It does not appear that there was a demand for a jury trial as to the particular matter.

The other questions in the case have heretofore been passed upon, and the judgment and order are affirmed, with costs.  