Philipe v. Levy — 16 N.Y. St. Rep. 889

Majority

p. 889

Antonio Philipe, App’lt, v. Boas Levy et al., Resp’ts.

(New York Superior Court, General Term,,

Filed, Jnno 86. 1888.)

Headnote

Foreign executor—Not a party to action against testator—Judgment BY DEFAULT—WHEN APPEAL NOT AUTHORIZED BY EXECUTOR— Code Civ. Pro., §§ 1294-1296.

Where a judgment was rendered against a non-resident by default, who thereafter died and an executrix was appointed in another state, but had not taken out letters in this state: Held, that the executrix not being a party to the action, is not within the provisions of section 1294 of Code of Civil Procedure and cannot appeal; that she is entitled to become a party and may appeal when she has complied with the provisions of section 1296.

Appeal from an order denying a motion to open a default.

Marsh, Wilson & Wallis, for app’lt; L. Edgar Aron and H. Morrison, for resp’ts.

Antoni Philipe was a resident of the state of Alabama. Judgment was rendered against him in this action by default. After the rendition of the judgment the said Antonio Philipe died, and the appellant, Ann M. Philipe, qualified as his executrix in the state of Alabama. She has not taken out letters in this state. Under this state of facts the said Ann M. Philipe made a motion at special term to open the default herein; that motion was denied, and from the order denying the motion the said Ann M. Philipe appeals.

I am of the opinion that the appeal should be dismissed. Ann M. Philipe is not a party to the action and therefore is not within the provision of section 1294 of the Code of Civil Procedure. She is entitled to become a party and may appeal when she has complied with the provisions of section 1296 of the Code.

Appeal dismissed, with costs.

Sedgwick, Ch. J., concurs.