
    Charles K. Robinson, Respondent, v. Edward R. Thomas and Orlando F. Thomas, Appellants, Impleaded with Edwin M. Post.
    (No. 2.)
    First Department,
    January 10, 1908.
    Abatement of action — attorney not substituted without revival — no appeal by defendants prior to revival.
    When an order reviving an action is vacated upon the ground that it was granted ■ on an ex parte application, the court cannot let so much of the order stand as ‘ substituted attorneys for the plaintiff. This, because, on vacating the order of revival, the action stood abated and no motion could be made therein until properly revived.
    ' But, although the court was without power to allow the substitution of attorneys to stand, the defendants cannot appeal. from the order until the action is revived.
    Appeal by the defendants, Edpard R. Thomas and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1907, as resettled by an order entered in said clerk’s office on the 31st day of July, 1907, in so far as it refuses to vacate an ex parte order substituting Charles S. Taber as attorney for the plaintiff in place of Russell & Winslow.
    
      Richard A. Irving, for the appellants.
    
      Charles S. Taber, for the respondent.
   Ingraham, J.:

The record fails to show the object of this action. There is an allegation that a demurrer was interposed to the complaint which would seem to have been sustained with permission to the plaintiff to serve an amended complaint, the time within which it was to be served not having expired when the sole plaintiff died on the 7th of October, 1906. Upon the death of the plaintiff the action abated, and no order could have been entered ex parte or otherwise until the action was revived. On the 26th day of June, 1907, an exparte order was entered reviving the action and, substituting Charles S. Taber as attorney for the plaintiff. This order being irregular, it having been entered ex parte without notice to the defendants, the defendants made a motion to vacate it; whereupon the court entered an order vacating the order so far as it revived the action, “ but that said order stand in so far as it substitutes said Charles S. Taber as attorney for the plaintiff in place of Russell & Winslow; ” and from that order this appeal is taken by the defendants.

Whatever was the status of the action before the ex parte order reviving it was vacated, as soon as that order was vacated the former status-of the action as one which had abated by the death of the plaintiff was reinstated, and no order could be entered and no proceedings taken in the action until it was properly revived by the personal representatives of the plaintiff. It is difficult to see upon what principle Charles S. Taber could be substituted as attorney for the plaintiff in the action, the plaintiff being deceased, as iipon no principle that I know of could a deceased plaintiff require an attorney. The action, however, having abated, no motion could be made in it, and no appeal could be taken or prosecuted until the action was revived. This appeal, therefore, was entirely nugatory, and it is, therefore, dismissed, without costs.

Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Appeal dismissed, without costs. Settle order on notice.  