Henry W. Steinhouser, as Assignee, etc., Respondent, v. John Mason, Appellant

Henry W. Steinhouser, as Assignee, etc., Respondent, v. John Mason, Appellant. An executor of an assignee for the benefit of creditors is not entitled to be substituted as plaintiff in an action brought by the decedent as such assignee, unless the executor has been substituted as assignee. (Argued October 4, 1892; decided October 11, 1892.) This was a motion to substitute Mary C. Steinhouser exe& utrix of the will of Henry W. Steinhouser, as plaintiff in the above entitled action, which was brought by plaintiff as assignee for the benefit of creditors of Charles Magnus. The following is the opinion in full: “ This is simply a motion to substitute Mary 0. Steinhouser as executrix of the will of plaintiff in his stead. As executrix, so far as any facts now appear, she has no place in the litigation, and no right of substitution. If she has been properly substituted as assignee in the place of her deceased husband, then she should make a motion to be substituted as such in this action, and so far as we can perceive, there would be no answer to such a motion. The moving papers do not disclose the fact that she has been substituted as assignee. This motion must, therefore, be denied; but as she seems to have been thus substituted since notice of this motion, the denial is without costs.” Fra/nhli/n Bien for appellant. Abram, Fling for respondent. [MAJORITY] Per Cv/ricmi opinion for denial of motion.. All concur. Motion denied.