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In re Camp

30 N.Y.S. 884 Court N.Y. Gen. Term Decision date 1894-10-26 English

Delivered by BROWN, P. J.

Contents

Majority

p. 884
(81 Hun, 387.)
In re CAMP.
(Supreme Court, General Term, Second Department
October 26, 1894.)

Headnote

Abatement of Special Proceeding—Surrogates’ Courts.
Code Civ. Proc. § 755, as amended in 1891, providing that a special proceeding does not abate if the right to the relief sought survives, does not • apply to proceedings in surrogates’ courts, since section 3347, subds. 4, 6, limit the application of chapter 8, which includes section 755, to certain courts other than the surrogates’ courts.
Appeal from surrogate’s court, Kings county.
Proceeding by William C. Camp for an accounting by Calvin B. Camp, his guardian. From an order reviving the proceeding against the executor of said Calvin B. Camp, who died during its pendency, the executor appeals. Reversed.
Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
Jennings & Russell, for petitioner.
Wm. C. Beecher, for Nelson Cross, executor.

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.

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