Opinion
April 2, 1951.
Present — Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ.
Motion referred to the court that rendered the decision.
On December 7, 1936, appellant Theodore Heos recovered a judgment for $10,130.85, and appellant Peter Heos recovered a judgment for $3,000 in a negligence action. On July 1, 1949, appellants delivered to the Sheriff a body execution for $13,130.85, issued in 1937, which the Sheriff refused to execute. On February 8, 1950, Special Term denied appellants' motion for an order directing the Sheriff to execute the 1937 body execution. On February 14, 1950, appellants appealed to this court. On April 14, 1950, Peter Heos died. On October 31, 1950, the appeal was argued without the substitution of the legal representatives of appellant Peter Heos. On December 11, 1950, without knowledge of the death of Peter Heos, this court reversed the order appealed from and granted the application. ( 277 App. Div. 112 9.) Motion by Sheriff to annul the determination of this court denied as to appellant Theodore Heos, but granted as to appellant Peter Heos pending appointment of the legal representatives of the latter. ( Bronheim v. Kelleher, 258 App. Div. 972.) Pending such appointment, the Sheriff is directed to execute the body execution in the sum of $10,130.85, plus interest and legal fees, in favor of Theodore Heos. Johnston, Acting P.J., Wenzel and MacCrate, JJ., concur; Adel and Sneed, JJ., concur but adhere to the opinion expressed by them in their dissenting memorandum on the determination of the court made on December 11, 1950.