Demaron v. Martin — 131 N.Y.S. 46

Majority

p. 46

(72 Misc. Rep. 152.)

DEMARON v. MARTIN.

(Ulster County Court.

May, 1911.)

Headnote

1. Justices of the Peace (§ 152*)—Appeal^-Death of Party—Substitution of New Party—Statutes.

Code Olv. Proc. §§ 757, 1298, authorizing the substitution o£ a new party where the sole plaintiff or defendant dies-pendente lite in case the cause of action survives or pending appeal, apply only to cases brought in certain courts, not including justice courts.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 152.^[1] )

2. Justices of the Peace (§ 152*)—Appeal—New Pakiy— Substitution.

The right of appeal from a justice’s final order in summary proceedings to dispossess a tenant having been given by Code Civ. Proc. § 2260, and there being no statutory provision authorizing the substitution of necessary parties for a respondent who died pending such appeal, in order to make the appeal effective power to make such substitution would be regarded as incidental to the right' of appeal, and would be exercised by an order of the County Court in accordance with the manner prescribed for substitution of new parties in courts of record by Code Civ. Proc. § 757.

[Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 152.*]

Appeal from Justice Court.

Summary proceedings by Clement Demaron against Amasa Martin before a justice of the peace to remove defendant as tenant from certain land. From a final order in favor of plaintiff, the tenant appealed to the County Court, and, petitioner having died pending the appeal, a motion was made to substitute his widow and heirs as parties respondent. Motion granted.

H. H. Flemming, for the motion.

James Jenkins, opposed.

^[1] 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 Justices’ Courts. In the Matter of Camp, 81 Hun, 387 , 30 N. Y. Supp. 884 . The same reasoning will apply to

p. 47

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.

[2] 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. Prac. 514.

Motion granted.