
    RILEY v. GITTERMAN.
    N. Y. Supreme Court, Second Department, General Term;
    
    
      December, 1889.
    1. Abatement and revival; revival of action in court of appeals.] There can bo no question as to the power of the court -of appeals, upon the death of an appellant to revive and continue an action in the name of an assignee, under a general assignment, made in the life-time of the appellant; and an order substituting such assignee as plaintiff, is, when made, conclusive. Sections 755 to 765, of the Code of Civil Procedure, relating to the abatement and revival of actions, and section 1736, making special provision for revival of an action in replevin, apply only to the original action, and not to-appeals. The code nowhere prescribes how or in what persons the substitution, after the death of the appellant, shall be made.
    2. The same irregulah'ity.] If the order of revival was improperly made, the party aggrieved must apply to the court of appeals to-vacate the order. It cannot be questioned collaterally.
    Appeal by defendants from a judgment entered upon a decision rendered at the trial of this action without a jury.
    An action was commenced in 1880 by Louis Siedenbach against Thomas M. Riley, plaintiff’s intestate, and at that time sheriff of the county of Kings, to recover certain personal property alleged to have been wrongfully taken and detained by him. Such proceedings were had that the-coroner took possession of the property mentioned in the complaint and delivered the same to Siedenbach. Riley soon after died, and an order was made reviving and continuing the action against this plaintiff, Julia A. Riley, who-had been appointed administratrix of the goods and chattels of the said Riley. The action was brought to trial and judgment entered in favor of this plaintiff against the said Siedenbach, adjudging that she was entitled to the possession of the property, and directing that she recover the same, or in default thereof, damages for the taking and detention. Siedenbach appealed to the General Term, and an undertaking was given by the defendants, Henry Gitterman and William Sulsbaclier, to pay all costs and damages in case the judgment should be affirmed. The General Term affirmed the judgment and an appeal Avas taken to the court of appeals, and another undertaking was given by the defendants with like conditions. Subsequent to the taking of the appeal and before argument, Siedenbach died, and thereafter an order Avas made by the court of appeals reviving and continuing the action in the name of William Sulsbacher, assignee, etc., of the said Louis Siedenbach* under a general assignment for the benefit of creditors. The court of appeals affirmed the judgment of the General Term, and the judgment of that court was duly made the judgment of the Supreme Court, and an execution thereon was issued against the plaintiff in that action, William Sulsbacher, which was returned unsatisfied.
    Thereupon these two actions were brought by this plaintiff against Henry Gitterman and William Sulsbacher, the first action to recover the amount of the undertaking given by the defendant upon the appeal by Louis Siedenbaeli to the court of appeals, and the second to recover upon the undertaking given upon the appeal to the General Term. The two actions were tried separately before Mr. Justice Cullen, a jury trial being waived. The evidence received on the trial of the first action was consented to be read on the trial of the second action. The defendants contended that they were not liable for the reason that after an appeal had been taken to the court of appeals, the plaintiff, Louis Siedenbach, died, and that the order of revival and continuance made by the court of appeals did not bring in the administrator of the deceased plaintiff, but instead brought in an assignee under a general assignment made by said plaintiff in his life-time, and that such assignment being only of partnership assets, did not carry the cause of action. The following is the opinion of Mr. Justice Cullen rendered at the trial term.
    
      “ As to the objection that the judgment of affirmance is a nullity because the action was not properly revived in the court of appeals, I think it is not well taken.”
    Sections 755 to 765, Code, are re-enactments on modifications of the old Code, which it was held did not apply to the court of appeals (Hastings v. McKinley, 8 How. 175). Section 1736, Code, makes special provision for revival of action in replevin, but this, like the section above mentioned, only applies to the original action, not to appeals. Section 1297 and 1298 apply to • appeals, but section 1297 is by its terms plainly confined to the case of the death of a party before appeal taken; section 1298 applies to cases like the present, the death of a party after appeal taken, but it authorizes the dismissal of an appeal upon .the proceedings provided, in case of no order being made substituting some other person in place of the party; but it does not at all prescribe how, or in what persons that substitution ■shall be had. The procedure therefore remains as it existed under the old Code. In Hastings y. McKinley supra, it was intimated that the court might have proceeded to hear the cause and render judgment as of a day before the death of the party, but the court deemed it proper to follow, as far as practicable, the course prescribed in courts of original jurisdiction.
    The power to revive an action in the name of an assignee, after the death of the assignol’, is settled (Schell v. Adams, 82 N. Y. 333). It matters not that the action is in replevin, if I am right in the opinion that the special provisions as to revival in that character of action have no application to appeals.
    The court of appeals thus haying the power to revive the action in the manner followed in this case, it follows that the order of revival made by the court is conclusive (Rogers v. Patterson, 4 Paige, 413). If the order was improperly made the party aggrieved must apply to the court to vacate the order, but it cannot be questioned collaterally.
    These two actions are not upon the same bond and therefore the causes of action are different. The pendency of one is, hence, no bar to the maintenance of the other, but as the parties are the same, and the satisfaction in the first case will discharge both liabilities, I think the proceedings in the second action should be stayed after judgment.
    Judgment for plaintiff, in both actions, with costs.
    
      Donohue, Newcombe c& Cardoza, for the appellants.
    I. The revivor, in the name of William Sulsbacher, as assignor, was irregular and not binding on the sureties on the undertaking. Section 1298 of the Code prescribes the practice and proceedings where either party to an appeal -dies before his appeal is heard. The case of Hastings v. McKinley, 8 How. Pr. 175, cited by the trial court, is merely obiter on the point that section 121 of the old Code does not apply to appeals.
    The case of Schell v. Adams is not applicable. In that case the assignee was clearly the proper person. In the case at bar the assignee was not the owner of the course of* action. Section 762 of the code provides that the provisions respecting revival do not apply to a case where special provision is otherwise made by law, and this expressly excludes section 1736, which refers to revival of replevin in. the name of the executor or administrator of the deceased party (Lyon v. Park, 111 N. Y. 350; Burkle v. Luce, 1 Comst. 163; Webb v. Exrs. Underhill, 19 Wend. 449; 2 R. S., 386, § 2; 447, § 1). Whether the provision of section 755 to section 765 of the Code apply to appeals or not, it would seem that the provisions of section 3298, which the trial court holds were applicable to appeals, were not complied with. There is no consent on the part of the person substituted, and there was no notice whatever to the-sureties.
    The statutes permitting the revival of actions are in derogation of the common law, and must be strictly construed —at common law all actions abated by the death of either party for want of litigants (Mason v. Dixon, Sir Wm. Jones Rep., 173). By statute in this State an action of replevin was made to survive in favor of the plaintiff, but not in favor of the defendants (Lahey v. Brady, 1 Daly, 443 ; Porter v. Van Vranken, 36 N. Y. 619).
    II. The trial court says that if the revivor was improper it cannot be questioned collaterally. We submit that for mere irregularity we cannot attack the revivor, but when the revivor was insufficient to obtain jurisdiction, it may be-questioned in a suit predicated upon the proceedings previously had in the action. The sureties who are defendants in this action cannot move in the original action. The court of appeals has remitted that cause for judgment to-the Supreme Court. There is no longer any jurisdiction in the court of appeals over that action.
    III. The remedy against the sureties on the undertaking on the appeal to the General Term was secondary to that against the sureties on the undertaking given on the appeal to the court of appeals (Hinckley v. Kreitz, 58 N. Y. 583 ; Smith v. Falconer, 11 Hun, 481; Pain v. Packhard, 13 Johns. 133; King v. Baldwin, 17 Id. 133; Schroeppell v. Shaw, 3 N. Y. 446: Morss v. Hasbrouck, 63 How. Pr. 84, 88).
    
      Thomas H. Pearsall, for the respondent.
    I. The case shows a regular revival and continuance, and does not present the question sought to be raised by the defendants. To present a question of fact on appeal, after a trial by the court, there should be either a finding together with a conclusion of law thereupon, and an exception thereto, or a request to find and an exception to the refusal (Purdy v. Purdy, 9 Weekly Dig. 425; Burnap v. National Bank of Potsdam, 96 N. Y. 125, 131; Lyons v. Cahill, 55 Super. Ct. [J. & S.] 553). The defendant’s answer distinctly admits that the action was duly revived and continued. Where the complaint alleges a substitution, the defendant is concluded if he does not put the allegation in issue (Smith v. Zalinski, 94 N. Y. 519; Smith v. Rathbun, 22 Hun, 150, 156). Even if defendants had offered evidence impugning the assignment, it would have been incompetent and inadmissible under the pleadings. The right to continue the action against Sulsbacher was adjudicated by the order of substitution (Greenwood v. Marvin, 111 N. Y. 423). By their pleadings defendants admitted Sulsbacher’s title to the cause of action. This was sufficient to authorize the jury to find a formal and valid sale to the plaintiff (Harris v. Frink, 59 N. Y. 24).
    II. The opinion rendered at the trial term is clearly right. The decision in Hastings v. McKinley, 8 How. Pr. 175, cited, has just been reaffirmed in People ex rel. Fair child v. Commrs. of Department of Fire, etc., of Brooklyn, 105 N. Y. 674. The power to revive an action in the name of an assignee, after the death of the assignor, is settled (Schell v. Devlin, 82 N. Y. 333). It is impossible that the personal representatives of the deceased in this ease should have any interest to come in ; for their so doing would only establish a liability against the estate. The substitution or non-substitution of parties does not affect the.liability of the sureties in an undertaking previously given in the cause (Manning v. Gould, 47 Super. Ct. [J. & S.] 387).
    III. Even had there been irregularity in the revival it would not avail in this action. It would be a mere irregularity which does not render the judgment void (Smith v. Joyce, 11 Civ. Pro. R. [Browne] 257; Hill v. Burke, 62 N. Y. 111 ; Wheeler v. McCabe, 5 Daly, 387; McSpeden v. Bouton, 5 Id. 30). The revival was made on the motion of the appellant, and he and those under him are estopped (Andrews v. Ætna Life Ins. Co., 85 N. Y. 344 ; Grissler v. Powers, 81 Id. 57; Blair v. Wait, 69 Id. 115 ; Dawley v. Brown, 79 Id. 391).
    IV. The revival raises no question of' jurisdiction, so far as these sureties are concerned. The court of appeals had already obtained jurisdiction of the cause and of the appellant. Jurisdiction did not lapse by his death (Smyth v. Sturgess, 110 N. Y. 665; Rogers v. Patterson, 4 Paige, 409). To one point that appellant’s remedy for any supposed irregularity was in the court of appeals, it is no answer to say that the cause is no longer there. It is well settled that to complain of irregularities imputed to the proceedings of the appellate court, the party aggrieved must procure the cause to be sent back there. The remittitur could have been recalled.
   The General Term affirmed the judgment of the Trial Term upon the opinion of Cullen, J., appearing above.  