Opinion
November 15, 1910.
James M.E. O'Grady, for the appellant.
George D. Forsyth, for the respondent.
The original plaintiff, now deceased, brought this action for an injunction to reinstate him in the defendant association, a fraternal insurance association. He recovered a judgment for the relief demanded in the complaint, with eighty-five dollars and fifty cents costs. On appeal to the Appellate Division the judgment was reversed and a new trial ordered ( 132 App. Div. 941). The case was noticed for trial by the defendant, but before any further proceedings were had the plaintiff died.
The administrators of the estate of the original plaintiff now desire to appeal to the Court of Appeals, and an application substituting them as plaintiffs in the place of the original plaintiff was granted upon condition that the beneficiaries named in the policy or certificate of membership apply to be joined as coplaintiffs with the administrators. The order further provides that unless such an application is made within thirty days after the entry of the order, a motion may be made by the defendant to vacate the order of substitution.
Thereafter another order was made at Special Term, without notice to defendant, substituting as parties plaintiff in the place of said original plaintiff, deceased, the administrators, together with two other persons, claiming to be beneficiaries under said policy. The defendant thereupon made a motion to vacate and set aside the last-named order, which was denied. The defendant appeals from the order substituting the beneficiaries and the order refusing to vacate, as well as from the first order substituting the administrators.
I think the defendant was entitled to be heard upon the original motion substituting the persons claiming to be the beneficiaries. While there was a condition in the order substituting the administrators that the beneficiaries under the policy should make application to come in as parties plaintiff, that, I think, could not be done ex parte. It was entitled to be heard upon the question as to who the beneficiaries are and what interest they have in the litigation. I think the order should have been vacated, and that the order refusing to do so should be reversed.
As regards the first order, it is not claimed that the administrators have any interest in the litigation except the question of costs. It is contended on their behalf that they have a right to appeal to the Court of Appeals for the purpose of reinstating the judgment of eighty-five dollars and fifty cents costs.
It does not seem to me that the Court of Appeals will entertain the appeal for that purpose alone, and the cases cited by respondent's counsel do not, I think, sustain that contention. If the administrators and beneficiaries together have any more substantial ground for prosecuting the action or taking the appeal to the Court of Appeals than the administrators alone, that should be determined upon a proper application upon notice to all parties, including the defendant, interested therein.
Although there are two records, neither contains the pleadings, and all the questions in controversy between the original parties, and how the parties now seeking to carry on the litigation will be affected thereby, may not fully appear. Upon the papers now presented I do not see how any other question is involved in the litigation save that of costs. For that purpose alone the action should not be continued.
I think the order substituting the administrators and the order refusing to vacate the ex parte order should be reversed and the ex parte order vacated and set aside, with ten dollars costs.
All concurred, except ROBSON, J., who dissented; SPRING, J., not sitting.
Order substituting administrators as plaintiff reversed, and order denying motion to set aside ex parte order reversed and motion granted, with ten dollars costs and disbursements.