William Arthur, Respondent, v. Elizabeth H. Griswold, Executrix, etc., et al., Appellants

William Arthur, Respondent, v. Elizabeth H. Griswold, Executrix, etc., et al., Appellants. (Argued February 8, 1875; decided February 16, 1875.) An order reviving an action against the representatives of a deceased defendant, sued jointly with others, is not reviewable here. If the cause of action does not survive against said representatives that objection is available on the trial; if it survive, but a joint judgment cannot be rendered against them and' the surviving defendants, a separate judgment may be rendered, or the court may direct plaintiff to proceed separately against each class of defendants. The order, therefore, does not affect a substantial right. Appeal from order of the General Term of the Supreme Court in the second judicial department, reversing an order of Special Term which vacated an order reviving the action against the representatives of John A. Griswold, deceased, one of the original defendants. (Reported below, 3 Hun, 606.) This action was brought against John A. Griswold and several others, as trustees of a corporation organized under the general manufacturing law of this State, for alleged fraudulent representations and for failure to file the annual reports. Judgment was rendered against all the defendants. They appealed to the General Term. Pending the appeal Gris-wold died. Upon petition of his executrix and executor an order was granted reviving the action against them and continuing it in their names. The General Term affirmed the judgment, but upon appeal to this court the judgment was reversed and new trial granted. (See 55 N. Y., 400.) The representatives of Griswold thereupon moved to vacate the order of revivor, which motion was granted. Wm. C. Holbrook for the appellants. Where a suit abates after an appeal, but before the appellate court becomes possessed of the cause, it must be revived in the court below before any further proceedings can be had on the appeal. (Rogers v. Paterson, 4 Paige, 409.) A defendant is entitled to revive in all cases after a decree when he can have a benefit from the further proceedings in the suit. (Anderson v. White, 10 Paige, 579; Anderson v. Anderson, 20 Wend., 589 ; Green v. Watkins, 6 Wheat., 260; Miller v. Green, 4 How. Pr., 159; Hastings v. McKinley, 8 id., 175 ; Livermore v. Bainbridge, 49 N. Y, 129, 130.) Defendants’ practice in applying for the order of revivor was correct. (Rogers v. Paterson, 4 Paige, 409; Green v. Watkins, 6 Wheat., 260.) The parties occupy now substantially the same position as if no judgment had ever existed. (2 C. & H. Notes to Phil. on Ev., 9; Woodcock v. Bennett, 1 Cow., 735; Close v. Stuart, 4 Wend., 98; Wood v. Jackson, 8 id., 36; Pulver v. Harris, 52 N. Y., 75 ; Chitty on Pldgs., 50, 53, 66-68, 90 ; Grant v. Shurter, 1 Wend., 148; Buckham v. Brett, 22 How. Pr., 233; Voorhis v. Child, 17 N. Y., 354; Union Bk. v. Mott, 27 id., 633; 3 Daniells’ Ch. Pr., 209 ; Foster’s S. F., 73,177; Com. Dig., Admn. B., 15; O’Donnell v. Seybert, 13 S. & R., 56; Wood v. Phillips, 11 Abb. [N. S.], 1.) A. C. Hand for the respondent. Defendants having become parties to the suit at their own request, cannot afterward be relieved from the consequences of their motion. (Greenfield v. Mass. Mut. L. Ins. Co., 47 N. Y., 30 ; Fisher v. Hepburn, 48 id., 41, 51.) The order appealed from should be affirmed on its merits. (Mer. Bk. v. Bliss, 35 N. Y., 412; Chaffee v. U. S., 18 Wall., 516, 538; Creed v. Hartman, 29 N. Y., 591, 592, 597; Boynton v. Hatch, 47 id., 225 ; Broom on Parties, 248 ; 56 L. Lib., 171.) Plaintiff had a right to appeal from the order vacating the order of revivor. (Chapman v. Foster, 15 How. Pr., 241; St. John v. Croel, 10 id., 253; Chowick v. Dimes, 3 Beav., 290 ; 2 Daniells’ Ch. Pr., 954.) [MAJORITY — Rapallo, J.] Rapallo, J. The order of the General Term,, reversing the order of the Special Term which vacated the order reviving this action against the representatives of John A. Griswold, deceased, did not, in our judgment, affect any substantial right of the appellants. If the cause of action did not survive against them, that objection will still be available on the trial. If the cause of action did survive, but a joint judgment cannot be rendered against the appellants and the surviving defendants, a separate judgment may be rendered against either, or the court may direct that the plaintiff proceed separately against each class of defendants; and that is suggested, in the opinion of the court below, as the appropriate mode of proceeding, citing Union Bank v. Mott. (27 N. Y., 633, 637.) If supplemental pleadings are necessary the court below can allow them. The right of the plaintiff to proceed jointly against all the defendants now upon the record is not established by the order appealed from, but is still subject to adjudication in the court below. We have frequently held that orders which affect mere modes of procedure do not deprive the party appealing of any substantial rights, and are not appealable to this court. ( Van Slyke v. Hyatt, 46 N. Y., 259, 263, 264.) The appeal must be dismissed, with costs. All concur. Appeal dismissed.