Opinion
Submitted December 6, 1967
Decided December 29, 1967
Motion (1) for vacatur of the order of the Court of Appeals dated June 1, 1967 dismissing the appeal herein (2) for substitution of the executor for the now deceased appellant Thomas as the party appellant herein, and/or (3) for clarification of said order of dismissal, dated June 1, 1967, dismissed. Upon the death of appellant Thomas the incompetency proceeding abated. ( Matter of Beckwith, 87 N.Y. 503; Carter v. Beckwith, 128 N.Y. 312; Matter of Frank, 283 N.Y. 106; Matter of Fleming, 223 App. Div. 849; see, also, Ann., 54 ALR 2d 1161.) As the action did not survive the death of appellant Thomas, CPLR 1015 does not authorize substitution of another for her as party appellant.