Rosenbaum v. Dale Factors Corp.

19 A.D.2d 604, 240 N.Y.S.2d 1020, 1963 N.Y. App. Div. LEXIS 3578

Opinion

Order, entered on August 16, 1961, unanimously affirmed, without costs. The action, which appears to have hcen commenced before the death of the plaintiff, was not dismissed by said order. The order, however, properly struck the complaint inasmuch as it was not served until after the death of the plaintiff. It was proper also to deny the motion to substitute the administratrix as party plaintiff in that it does not appear that the application for such substitution was properly authorized (see 2 Carmody-Wait, New York Practice, §§ 37, 38, 40, pp. 111-112, 115; Bobinson v. Thomas, 123 App. Div. 411) but the order and the affirmance here is without prejudice to a proper application for such substitution. 'Concur — Botein, P. J., McNally, Stevens, Eager and Steuer, JJ.