Demaron v. Martin

72 Misc. 152, 131 N.Y.S. 46

• Court: New York County Courts
• Decided: May 15, 1911
• Status: Published

Opinion

Cantine, J.

The motion is made under section 757 of the Code. The widow and heirs at law appear and object to the granting of the order upon the ground that section 757 does not apply and that the proceedings should be taken under section 1298. It has been held that section 757 applies only to actions brought in certain courts which do not include justice’s court. Matter of Camp, 81 Hun, 387.

The same reasoning will apply to section 1298, invoked by the heirs at law. An appeal is, therefore, regularly in this court and, while in this court, one of the parties dies and there is no statutory provision authorizing the substitution of the necessary parties to make the appeal effective.

I can also find no authority directly bearing upon this proposition. The right of appeal is given by section 2260 of the Code. If this motion be not granted, the right given is destroyed.

I shall, therefore, hold that incidental to the right of appeal given to a party there is given to the court power to do such acts as may be necessary to make such appeal effective, there being no statute or rule of the court expressly limiting the same. The simplest manner of substitution is that described in section 757 of the Code, and by analogy that method is adopted in this case. Schuchardt v. Remiers, 28, How. Pr. 514.

Motion granted.