Opinion
April Term, 1900.
John L. Wells, for the appellant.
Isaac M. Kapper, for the respondent.
This action was originally commenced by Charles Meekin, the father of Laurie Meekin, deceased, to recover damages against the defendant for wrongfully causing the death of his said daughter. Charles Meekin is dead, and Clara Meekin has been appointed administratrix of Laurie Meekin. The administratrix petitioned to be substituted as plaintiff herein in place of Charles Meekin, and the prayer of her petition has been granted by the court below, which made an order reviving the action in her name and giving her leave to serve a supplemental summons and complaint.
We think that this order should be sustained upon the authority of Mundt v. Glokner ( 24 App. Div. 110), on the prevailing opinion of the Appellate Division of the first department in that case. As the decision in the case cited granted a new trial, the Court of Appeals was without jurisdiction to pass upon the important question of law which was presented there and which arises here, inasmuch as there was no stipulation on the part of the appellant for judgment absolute in the event of an affirmance. ( 160 N.Y. 571.) In the present case, however, there need be no such difficulty if the defendant desires to go to the Court of Appeals; and we think the question is one which ought to be determined as speedily as may be by that tribunal.
The order was erroneous, however, so far as it charged the defendant with costs. It will be modified by striking out the award of costs, and as modified affirmed, without costs of this appeal to either party.
All concurred.
Order modified by striking out the award of costs, and as modified affirmed, without costs of this appeal to either party.