Appellate Division of the Supreme Court of New York, 1963

Rosenbaum v. Dale Factors Corp.

Rosenbaum v. Dale Factors Corp.
Appellate Division of the Supreme Court of New York · Decided June 18, 1963
19 A.D.2d 604; 240 N.Y.S.2d 1020; 1963 N.Y. App. Div. LEXIS 3578
Rosenbaum v. Dale Factors Corp.

Opinion of the Court

Order, entered on August 16, 1961, unanimously affirmed, without *605costs. 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.

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