
    Ann Augusta Warner, Plaintiff, v. Isidore Shweitzer, Appellant. Walter E. Warner, Petitioner, Respondent.
    
      Substitution — allowed without proof of the facts stated in the petition where such-facts are not disputed.
    
    Upon a petition, made in an action, after -the death of the plaintiff, alleging facts showing the petitioner to he the successor in interest and personal representative of the original plaintiff, the court will, if such facts are not disputed by .the defendant, direct the petitioner’s substitution in the place of the original plaintiff without requiring the petitioner to prove the facts in court or before a. ■ referee. ' .
    Appeal by the defendant, Isidore Shweitzer, 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 14th day of March, 1900, as resettled by an order entered in said clerk’s -office on the 20th day of March, 1900, substituting Walter E. Warner as plaintiff in the place of Ann Augusta Warner, deceased. ■ ■ • .
    
      Julius J. Frank, for the appellant.
    
      Robert H. Roy, for the respondent.
   INGRAHAM, J..;

The action was brought by a vendor of real property for a specific performance of a contract to convey. The action was brought on for trial at a Special Term of the court, and on the 7th of December, 1899, was decided in favor of the plaintiff, the decision being filed on or about the 23d of February, 1900. On the 6th day of March, 1900, the respondent presented to the court a petition alleging that on the 15th of January, 1900, the plaintiff assigned to the petitioner, “ for value received* all her right, title and interest in and to the said contract to sell real property in and to any and every cause of action arising therefrom, and your petitioner is now the lawful owner of the same.” The petition further alleged that pending the decision of the court in the action the said Ann-Augusta Warnér died, leaving a last will and testament which was duly admitted to probate on the 14'th of February, 1900, and that the petitioner is now sole executor and sole legatee of said last will and testament, and the petition asks that the petitioner be substituted as plaintiff in place of said Ann Augusta Warner, deceased, and that the said action be continued in his name. The court below granted the motion; the order provided that the above-entitled action be continued by Walter E. Warner, as plaintiff, in said action in place and stead of Ann Augusta Warner, and that Walter E. Warner be, and he hereby is, substituted as plaintiff in said action, and that said action proceed with the same force and effect as if said Walter E. Warner had been originally the plaintiff herein.”

The allegations of the petition as to the transfer of the contract and right of action thereunder to the plaintiff, and as to the death of the plaintiff and the probate of her will, by which this petitioner became sole executor, are not denied; .nor did the defendant ask that the petitioner should be required to prove those allegations. No question seems to have been raised as to the facts in the court below, and so it was not error for the court to act without requiring the petitioner to prove the facts either in court or before a referee. The sole plaintiff in the action having died, it was the duty of the court to allow the action to be continued by her representative or successor in interest. (Code Civ. Proc. § 757.) Upon these allegations of fact, not disputed by the defendant, the petitioner was the plaintiff’s successor in interest and was, therefore, entitled to continue the action.

It follows that the order should be affirmed, with ten dollars costs ■and disbursements.

Van ' Brunt, P. J., Rumsey, Patterson and McLaughlin, JJ., ■concurred.

Order affirmed, with ten dollars costs and disbursements.  