
    Quayle W. Hawkes and James Goodfellow, Appellants, v. Joseph H. Claffy and John W. Kingston, Respondents.
    First Department,
    December 6, 1907.
    Abatement — death óf co'plaintiff — when action of survivor does not abate — appeal on behalf of deceased party.
    When after the commencement of an action by two plaintiffs on behalf of themselves and other creditors of the defendant to recover for-labor and materials furnished, one of the plaintiffs dies, the right of action of the surviving plaintiff and other creditors does not abate and the complaint may be dismissed for failure to appear'at trial.
    The dismissal of the complaint does not affect the right of the personal representative of the deceased plaintiff to revive the action as to him.
    Although the complaint in such action has been dismissed, the surviving plaintiff is not in a position to appeal on behalf of the deceased plaintiff on the theory that the judgment in form is against a dead person, for the rights of the deceased can only be asserted by his representative after moving to revive the action.
    - Appeal by "the plaintiffs, Quayle W. Hawkes and another, from an order oí the Supreme Co.urt, made at the Hew York Special Term and entered in the office oí the clerk, of the county of Hew York on the' 18th day of June, 1907, denying the 23laintiffs’ motion to set aside an order dismissing the complaint herein upon the ground that said order was entered after the death of one of the 23laintiffs.' .
    
      Charles H. Stoddard, for the appellants.
    
      Frank M. Avery, for the respondents.
   Ingraham, J.:

This action was commenced by two plaintiffs on behalf of themselves and all other persons who were creditors of the defendant John W. Kingston, who had furnished labor or material towards the erection of a building upon, certain premises described in the complaint. The answer was served on the 17th of January, 1907, and thereafter, and on the 28th day of March, 1907, the plaintiff Hawkes. died. After the death of Hawkes the action appeared upon the calendar of the Special Term, when it was suggested in open court that one of the plaintiffs was dead. The other plaintiff appeared for the purpose of moving to mark the case off. The defendant insisted that the case should be tried, whereupon the case was.marked ready for trial. When the cáse was called for trial the plaintiff did not appear, and on motion of the defendants’ attorney the complaint was dismissed and an order was filed dismissing the complaint, upon which judgment was entered. Although the complaint is not a part of the record, it would appear that the action was to enforce separate claims of the plaintiffs and the claims of the other creditors of the defendant Kingston. By the death of one plaintiff the action abated as. to him. His death, however, did not interfere with the enforcement of the cause of action as to the other plaintiff or the other creditors, who could have proceeded with the trial, entering upon the record a statement that one of the plaintiffs had died. It was not error for the court to proceed witli the trial, and while it is quite clear that a dismissal-of the complaint would not affect the right of the personal representative, of the deceased plaintiff to move to revive the action as to him, as no such application has been made, there is no one in a position,, by motion or by appeal, to move to vacate the judgment. The plaintiffs’ attorney cannot appear and prosecute this appeal on behalf of the deceased until the adtion is revived by his personal representatives, and no error was committed in dismissing the. complaint as to the surviving plaintiff. It appeared'by the notice of appeal that both plaintiffs appealed from the order denying the motioti to vacate the judgment. The dead plaintiff certainly could not appeal, and the judgment dismissing the complaint as to the ■ surviving plaintiff was not irregular or void. The cause of action, to enforce the right of Goodfellow, was unaffected by the death of Hawkes,' and neither the presence of Hawkes nor his representatives affected the right of Goodfellow to proceed with the action and obtain such judgment as he was entitled to. Therefore, under section 158 of the Code the entire cause of action of Goodfellow survived, notwithstanding the death of his coplaintiff. If this judgment is in effect against a dead man it is void as to him, but the surviving plaintiff is not in a position to move on behalf of the deceased plaintiff. Hotliing prevents the representatives of the deceased person from moving to revive the action in their favor, or making such, other application as is necessary to protect their rights.

The appeal taken on behalf of the deceased plaintiff must be dismissed and on tho appeal taken on behalf of the surviving plaintiff the order is affirmed, with ten dollars costs and disbursements.

Pattebson, P. J., Laughlin, Olabke. añd Scott, JJ., concurred.

Appeal taken on behalf of deceased plaintiff dismissed; on appeal of surviving plaintiff, order affirmed, with ten dollars costs and disbursements. Settle order on notice.  