
    Patrick M. Carolan, Individually and as Executor, etc., of Neal O’Donnell, Deceased, Plaintiff, v. Anthony O’Donnell, Rebecca O’Donnell and Others, Appellants, Impleaded with William F. Clare and Andrew J. Toland, as Executors of and Trustees under the Last Will and Testament of Neal O’Donnell, Deceased, Respondents, and Others, Defendants.
    First Department,
    December 30, 1910.
    Abatement of action — stay on death of party — power of court not limited by Code — survival of action to establish will — death of plaintiff — when action will be continued without substituting party plaintiff’.
    While a stay of proceedings on the death of a party to an action is not in terms prescribed by the Code, it necessarily follows from section 765 which prohibits ’ the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him and no proceedings leading up to a judgment can be takpu.
    The power of the court to revive an action which does not abate ou the death of' a party is not limited to the cases specifically enumerated in sections 755 to 765 of the Code of Civil Procedure.
    An action under section 2653a of the Code of Civil Procedure to. establish the validity of a will does not abate ou the death of a party.
    On the death of a'non-resident plaintiff who brought such action individually as legatee and as executor of the testator,-the court not- being able to bring in the foreign representative of the decedent, will allow the action-to proceed under •the existing title without substituting a nominal plaintiff where the next of ■ kin made- defendants desire its continuance, for they may be practically considered as plaintiffs or defendants as they respectively seek to sustain or to destroy the will.
    'Appeal by the defendants, Eebecca O’Donnell and others, from an order of the Supreme Court, made at the New York Special Term bearing date the 9th day of June, 1910, and entered in the office of the clerk of the county of New York.
    
      Gilbert F. Lamb, for the appellants.
    
      William F. Glarefor the respondents.
   Scott, J.:

This is an appeal from an order denying a motion by the defendants, Eebecca O’Donnell and others, that the action be revived and coninued either in the names of the surviving executors of Neal O’Donnell, deceased, as plaintiffs, or in the name of said Eebecca O’Donnell as plaintiff. The action was brought - under section 2653a of the Code of Civil Procedure to establish the validity of a paper alleged to be the last will and testament of Neal O’Donnell,' deceased.

The action was commenced by Patrick M. Carolan, “ individually and as executor of the last will and testament of Neal O’Donnell, deceased,” his. interest as aii individual arising from a legacy of .two shares of stock of the N. ■ & H. O’Donnell Cooperage Company.. The defendants are the two executors of Neal O’Donnell, deceased, his next of kin and the legatees named in his .will. The action was once tried and resulted^ in a judgment upholding' the validity of the will. This • judgment - was reversed and a new trial' granted. Before the new tidal could he had Patrick M. Carolan, the plaintiff, who was a resident of Pennsylvania, died, leaving, so far as is known, no property in this State, and no personal representives here. It is objected by the surviving executors that section 757 of the Code of Civil Procedure authorizes only the.substitution of a “representative or successor in interest ” of a sole plaintiff or defendant who dies before judgment, and that neither they nor any other defendant can be said to be, in a legal sense, the representative or successor in interest of Carolan, and they further object that there is no authority for taking a party who is already a defendant and transposing him into the place of a plaintiff. The whole subject of reviving or continuing an action after the death of a party is now regulated by title 4 o'f chapter 8 of the Code of Civil Procedure, comprising sections 755 to 766, inclusive. The two controlling sections of this title are section 755, which provides that: “ An action does not abate by any event, if the cause of action survives or continues,” and section 765, which-provides: “ This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him.” The stay of further proceedings in an action after the death of a party is not, in terms, prescribed by the Code, but follows, in ordinary actions, upon the inhibition contained in section 765, for if a judgment cannot be entered against a deceased party so no step leading up to a judgment can be taken. The-sections between sections 755 and 765 provide how an action may be revived after the death of a party in certain cases, but do not cover every possible case, or serve to limit the power of the court in cases not provided for. “ But we do not think that the right of a party to the continuance of an action, by or against the representatives of a deceased party, where the cause of action survives, depends upon the existence of the precise circumstances stated in section 757 or the following sections. . The paramount rule is declared in section 755, that an action does not abate, by any event, if the cause of action survives or continues. The subsequent sections seem to have been enacted to provide for special cases and not to limit to those cases only the power of the court to continue an action.” - (Lyon v. Park, 111 N. Y. 350.) It is undoubtedly true that ordinarily an action cannot proceed to judgment after the death of a sole, plaintiff or defendant unless substitution is made, but the present action is peculiar in its character. It is solely the creation of statute and is, in its nature, an action in rem. ■ The issue is confined to the question of whether the writing produced is or is not the last will and codicil of the testator or either. The action may be brought by any one interested either to uphold or to defeat the will. All persons interested either for or against the will must be made parties. The alignment of the parties is prescribed, not as one or another may nominally be plaintiff or defendant, but as one or another seeks' to uphold or defeat the will. Those sustaining the will, whether plaintiffs or defendants, are by statute put- in the place of plaintiffs in that they are given the right .to open and close. In such an action, therefore, a plaintiff has fulfilled his entire functions as nominal plaintiff when he has brought the parties into court. After that Iris interest in and control of the controversy is no ■ greater than that of any- other party holding the same attitude .toward the validity of the will that he holds. In this regard an action like the present much resembles a proceeding before the surrogate for the probate of a will, as to which the Court of Appeals lias- said: “After the petition was filed with the surrogate and the proper parties had been cited and were before him, he had - jurisdiction of the subject-matter and of the parties. It was a ¡iroceeding in rein to prove the will. All the parties could become actors therein. (Code, § 2817.) Any of 'them could contest and produce witnesses in opposition to the probate, and any of them could, offer witnesses in support of the will and cross-examine the witnesses called in opposition thereto. * * * So long as any person cited is. before,the. surrogate in support of the will, he has no right, upon the motion of any other party, arbitrarily to arrest or dismiss the proceeding. After the proceeding is once instituted, and the parties cited are before the surrogate, it is not solely the proceeding of the proponent. It is a proceeding in behalf of "all the parties interested to prove the will. If the proponent ■ should die, the proceeding would not abate. If he left successors to his interest, they would have to be • brought in and be made parties to the proceeding as persons interested in the. estate. If the proponent should refuse to introduce any evidence in support of the will, any other party could produce and examine the witnesses.” (Matter of Lasak, 131 N. Y. 624.) When we consider the nature of this action, and its close analogy, so far.as the issues are concerned, to a proceeding for probate, it is quite clear that it is not such an action as abates by reason of the death of one of the parties. It is also desirable that the present action should continue because the short statute of limitation prescribed by section 2653a seeins to have run so as to prevent the institution of another action under that statute. The only question presenting any difficulty is as to the substitution of a nominal plaintiff iii place of Carolan. As has been said he was a non-resident and no representative of his estate has been appointed in this State. Whether or not such a representative has' been appointed in Pennsylvania does not appear, but that fact is immaterial, because this court could not bring in a foreign representative against his will. (Lyon v. Park, supra.) So far as Carolan’s interest in the subject-matter of the action resulted from the fact that he was named as executor in the will, that interest died with him. He was also interested, however, as legatee of the two shares of stock above referred to, and without his presence or the presence of his representatives, no judgment can be entered which will be conclusive as to the validity of that legacy. As to all the other parties to the action, however, a complete and binding judgment can be rendered, which would be effectual as to them, notwithstanding it might not bind Carolan’s estate. This precise question arose respecting an action to establish the will of Antoine Huppaner, deceased, in which one of his next of kin had been omitted as a party. The action went to judgment nevertheless, and a question afterwards arose as to the validity of the judgment. It was held that the judgment was valid and effectual as to those who were parties to it, and that the only effect of the omission was that the judgment was not binding upon the party who was omitted. (Keyes v. Ellensohn, 82 Hun, 13; Matter of Ruppaner, 9 App. Div. 422.) It is, therefore, not an insuperable objection tó the continuance of'the action that Carolan is dead and that his representatives cannot be substituted in his place. If the will be upheld his. absence will not matter! If the judgment be that the will is invalid, the legacy to Carolan will remain unaffected, and the next of kin must take the estate subject to the satisfaction of the legacy. But as it is the next of kin who seeks the con tin u. anee of the action, they will not object to this result. Ordinarily an action without at least a nominal plaintiff would be anomalous, but this is an unusual form of action in which, as already pointed out, the plaintiff after he has brought the parties into court, becomes simply one of the contesting parties and has no more control of the-action than any other ' party. Our conclusion is that no . substitution of a nominal plaintiff in place of Patrick M. Carolan, deceased, is necessary, but that the action may proceed (using the present title as a matter of. convenient identification) between the contesting defendants who are practically, although not nominally, aligned as plaintiffs and defendants as they respectively seek to sustain or to destroy the alleged will.

The order appealed from, which denied defendants’ motion in all respects, is, therefore, reversed, and the motion granted to the extent indicated above.

Ingraham, P. J., Clarice, Miller and Dowling, JJ., concurred.

Order -reversed and motion granted to extent stated in opinion. Settle order on notice. 
      
       See 128 App. Div. 924; revd., 197 N. Y. 599.— [Rep
     