Arthur v. Griswold

After a trial and judgment in favor of the plaintiff, the defendant, John A. Griswold, died pending appeal, and his executors obtained an order substituting them as defendants. The appeal was further prosecuted by them, and judgment had in their favor directing a new trial. Thereafter, the executors, on motion, obtained an order at Special Term, vacating the order which substituted them as defendants in the action; and from this order the plaintiff appeals.

The action did not abate as to Griswold, and, sounding in tort, it survives against his representatives.* Inasmuch as the surviving defendants, who are principals, may not be joined in an action of this nature with the representatives of the deceased Griswold, the proper practice seems to be to move for a severance of the action, † At all events these representatives having voluntarily come into the action, and having obtained judgment in their favor directing a new trial, the court will not now, on their application, vacate the order of substitution which they obtained. The order of Special Term, vacating the order of substitution, should be reversed, with ten dollars costs.

Present — Tappen and Talcott, JJ.

Order reversed with ten dollars costs.