In re Camp

30 N.Y.S. 884, 81 Hun 387, 88 N.Y. Sup. Ct. 387, 63 N.Y. St. Rep. 160, 24 N.Y. Civ. Proc. R. 159

• Court: New York Supreme Court
• Decided: October 26, 1894
• Status: Published

Opinion

BROWN, P. J.

During the pendency of the above-entitled proceeding, and after his accounts had been filed, the guardian died. The proceeding was revived against the guardian’s executor, and the order of the surrogate is sought to be sustained, under sections 755 and 757 of the Code of Civil Procedure. Prior to 1891 there was no authority for continuing a pending undetermined special proceeding in the name of an administrator or executor. In re Palmer, 115 N. Y. 493, 22 N. E. 221. The right to revive and continue such proceedings in the name of or against executors or administrators of deceased parties depends entirely upon statutory authority. The sections of the Code referred to do not relate to proceedings in surrogate’s court. Their application is limited by subdivisions 4 and 6 of section 3347 of the Code, which provide that chapter 8, which includes sections 755 and 757, applies with certain exceptions, not material on this appeal, to actions and special proceedings commenced in the supreme court, a superior city court, the marine court of the city of New York, or a county court. The fact that the sections relied upon to support the order were amended in 1891 does not make them applicable to all special proceedings. In their amended form they are still subject to the limitation of section 3347. The order of the surrogate is not, therefore, supported by any statutory authority, and must be reversed, with costs.