McLachlin v. Brett

The motion to dismiss the appeal is based altogether upon the objection that the notice of appeal is entitled in the name of the appellants Hugh F. and Claude McLachlin. Both of the original parties to the action are dead. Hugh F. and Claude McLachlin are shown to have succeeded and become entitled to the ownership of the cause of action, and own the same now as partners carrying on business as the successors of the original plaintiffs. In the body of the notice of appeal it is shown that the appeal is from the order denying the motion that these appellants be substituted. There is no question therefore as to what the'appeal is from, nor can there be any that the parties bringing the appeal are the parties aggrieved by the order.

¥e are inclined to the opinion that under the circumstances *20apparent in the case it may properly be taken by the persons named as appellants under the provisions of sections 1295, 1296 and 1300 of the Code, but if for any technical reason this be not so we think we have the power and it is our duty under sections 723 and 724 of the Code to amend the title of the order so as to cure the alleged defect by changing the title to the original title of the action. The motion therefore to dismiss the appeal is denied, without costs.

The construction given to section 757 of the Code by this court in Coit v. Campbell (20 Hun, 50) was not acceptable to the Court of Appeals; and in the same case (82 N. Y., 509) that court regarded, a motion for substitution as the proper remedy in a case where at the commencement of the action there were several defendants, each of whom had successively died, holding, in substance, that the last survivor occupied the position of sole plaintiff within the intention of the section. Under that construction this case comes precisely within the provisions of section 757, and the right to substitute is conferred upon the plaintiffs who show themselves to have become the owners aud successors of the plaintiffs of the title to the subject-matter of the action and by due process have purchased from their respective representatives. The motion,' therefore, of substitution ought to have been granted. The succession in action was sufficiently established in the case to bring it clearly within the rule governing such applications, and fully satisfied tile objection upon which/the Court of Appeals seem to have disposed of Coit v. Campbell.

The order should be reversed and order of substitution granted, but under the circumstances without costs.

Motion to dismiss appeal denied, without costs. Order reversed and order of substitution granted, without costs.