Price v. Booth

21 A.D.2d 680, 249 N.Y.S.2d 1007, 1964 N.Y. App. Div. LEXIS 3846

Opinion

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Westchester County, dated September 23, 1963, which granted the motion of the defendant Martin for summary judgment dismissing the complaint, and which dismissed the complaint and directed cancellation of the lis pendens. It appears without dispute that, during the interim between the service of the notice of appeal herein on or about October 26, 1963 and the submission of the appeal to this court for decision on April 27, 1964, the plaintiff-appellant died. In the absence of the substitution of his executor or administrator as the proper party plaintiff-appellant, this court may not proceed to a determination of the appeal on the merits (GPLR 1015, 1021; Bronheim v. Kelleher, 258 App. Div. 972). Under the circumstances, the appeal will be held in abeyance for a period of 90 days after entry of the order hereon; and if, during this period, an executor or administrator for the plaintiff-appellant shall not have been appointed' and substituted as the proper party in this action, the appeal will be dismissed (CPLR 1021). Beldoek, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.