Bissell a. Hamlin.

upon it purport to have been made. But the court did not intend, as we think, to direct the referee to receive such paper without the same evidence was given to authorize him to do so, which the court had determined was sufficient to render it competent as evidence; and we are quite clear that the court has no power, on reversing a judgment, to order it to retrial either wholly or in part on the evidence given on the previous trial.

Viewing the case, as resettled, as stating accurately what the court did decide in February, 1857, and as stating the actual proceedings had before the referee on the second trial (which resulted in the judgment now appealed from), the referee admitted Exhibit E as evidence on the second trial because he considered himself instructed by the general term order of February 21st, 1857, so to do. At the stage of the trial when it was so admitted, according to the case as resettled, no extrinsic facts in respect to it had been proved to make it competent as evidence, and its admission was excepted to. The general term order of February 21st, 1857, appears to have been produced on the second trial, by the plaintiff, and relied on as giving him the right, by its own force, to have Exhibit E admitted as evidence.

It is printed as part of the case as resettled, and the case states that the referee admitted it in evidence, as directed by said order.

The court, on affirming (in July, 1858) the judgment from which the present appeals are taken, must have understood, as we think, that the order of February 21st, 1857, had been entered by consent; but the case, as it was resettled, does not show that it was so entered, and we think that the order, if it is to be regarded as expressing the decision actually made, is erroneous-that the court had no authority to order peremptorily, that the cause be sent back to the referee on the evidence given on the first trial, and that the referee admit Exhibit E as evidence on the second trial. We also think that the fact that the referee admitted it as evidence on the second trial, in consequence of the direction contained in such order, does not exempt his decision from the objection that it was wrong.

We agree that the judgment entered July 2d, 1858, on the

Warren a. Eddy.

argument of the present appeals, must be reversed, a new trial granted, and that the order of reference heretofore entered be vacated; and an order to that effect will be entered.

WARREN a. EDDY.

Supreme Court, First District; General Term, November, 1860. Again at Special Term, March, 1861.

DECEASED PARTY.-FOREIGN ADMINISTRATOR-DISMISSAL OF

APPEAL.

Where, on appeal to the general term, a notice of argument was served upon the attorney for the appellant after the death of the appellant, and after notice of that fact to the respondent, and the respondent took an order by default for an affirmance of the judgment,-Held, irregular.

In such case the only proper course to obtain an affirmance of the judgment is to have an administrator appointed, and the action revived in the name of such administrator.

It seems doubtful whether the general term can affirm a judgment where a case has been made, before the case has either been filed or served.

Executors or administrators appointed in another State sau neither continue nor dismiss an appeal pending here.

Any appellant can dismiss his own appeal, on payment of costs, at pleasure.

I. November, 1860.-This was an appeal from an order of the special term, setting aside a judgment of affirmance entered upon order of the general term.

The cause had been tried at circuit in New York, before Mr. Justice Wright, and judgment rendered for the plaintiff. Defendant appealed, and gave the requisite undertaking to stay proceedings, and subsequently served a proposed case and exceptions: the plaintiff proposed amendments. The case was settled by Mr. Justice Wright, and returned to defendant. On receiving the amendments, defendant's attorney notified the plaintiff of the death of the defendant, and that Heartley Williams had been appointed administrator of the deceased in the State of Massachusetts, and that the administrator desired to

Warren a. Eddy.

abandon the appeal. No copy of the case as settled had been served on the respondent or filed. The defendant died before the case was settled. Notice of his death was given to the plaintiff. The respondent served notice of argument for the general term held in February, 1860, in season, upon James W. Culver, who had been attorney of record for the plaintiff, and took an order by default for the affirmance of the judgment. A motion was made at special term, before Mr. Justice Leonard, to set aside the judgment entered pursuant to this order, as irregular. The motion was granted, and the plaintiff appealed.

Edward P. Clark, for the appellant.-I. There was no irreg ularity in proceeding with the appeal after the death of the appellant, and entering judgment as of date prior to his death. (Miller a. Gunn, 7 How. Pr., 159.) 1. Section 121 of the Code does not apply to cases on appeal. (Hastings a. McKinley, 8 How. Pr., 175.) 2. By the old practice, if the plaintiff in error died after error assigned, the writ of error did not abate, but the defendant must have joined in error, and proceeded to have the judgment affirmed, if not erroneous. (2 Graham's Pr., 965; 2 Saund., 101, note; 7 East, 296; Miller a. Gunn, supra.)

II. There was no want of authority on the part of the appellant's attorney. 1. It is, the general duty of agents, after the death of their principal, to take care of whatever they have in hand until a successor takes their place. (Nicolet a. Pillot, 24 Wend., 240.) 2. But by the direction of the administrator the appeal was abandoned, and notice of the same given through the appellant's attorney, and the respondent was thus authorized to enforce the judgment. The only way to enforce it was by appealing it.

III. The administrator is a non-resident, and if the former attorney cannot act until retained anew, and a revivor is necessary, the respondent is without remedy.

IV. The undertaking is intended to secure the respondent in case the appeal is dismissed for want of prosecution or service of papers, as well as in the event of affirmance on argument. By reason of the stay and the subsequent death of the appellant, the defendant's property has been kept from execution until it is transferred to the administrator, and the appellant should not be prejudiced by it.

Warren a. Eddy.

Samuel B. Garvin, for the administrator.

BY THE COURT.*-SUTHERLAND, P. J.-I think the order of the general term affirming the judgment, and the judgment of affirmance entered thereon, were made and entered irregularly, and that the order of the special term, appealed from, setting aside the judgment of affirmance, should be affirmed.

The notice of argument for the February general term, 1860, was addressed to and served upon J. W. Culver, as the attorney for the defendant, Daniel F. Eddy, long after his death, and after the attorney for the appellant had been notified of his death.

At the time of the service of the notice, J. W. Culver could not act for a dead man, and he had no authority to act for or represent his estate.

The order of the general term for affirmance by default, founded on such notice, was therefore irregular, inasmuch as it was made without notice to any one representing the estate of Daniel F. Eddy.

His personal representative was a non-resident, and the action could not have been revived in his name; but the plaintiff, if he desired to prosecute the appeal after he received notice of the death of Eddy, and that his foreign administrator intended to abandon the appeal, could have had an administrator appointed here, and then he could have applied to have the action revived in the name of such domestic administrator. I see no other way in which he could regularly obtain a judgment of affirmance after the death of Eddy.

There is doubt, too, as the case was never served or filed, whether the general term ever got possession of the appeal so as to affirm the judgment. The general term could of course dismiss the appeal for the non-service of the case, but whether they can affirm the judgment when a case has been made before the case has been either filed or served is, to say the least, doubtful. (Hunt a. Bloomer, 3 Kern., 341; Pope a. Dinsmore, 29 Barb., 367.)

But it is not necessary to decide that question in this case. I think the order of the special term should be affirmed, with ten dollars costs, on the first point alone.

* Present, SUTHERLAND, P. J., HOGEBOOM and BONNEY, JJ

Warren a. Eddy.

II. March, 1861.--The administrator afterwards applied at special term, for leave to discontinue the appeal.

James W. Culver, for the administrator.-The notice of appeal is analogous to, or performs the office of, the allowance and filing of the writ of error. This proceeding, in either, case, removes the cause to the higher court. After the filing of the writ, errors were assigned, and next a writ of certiorari was allowed. The clerk of the inferior court then made his return, or certified all the proceedings before him. This brought up the alleged error, or errors (Graham's Pr., 2 ed., 95, Colden a. Knicklerbacker, 2 Cow., 31, 36), now instead of the certiorari, the clerk makes his return, or certifies all the proceedings to the appellate court. Until this be done, the record or error is not before the appellate court. Until the return is made, the record is not in the appellate court; and if the defendant dies before the return is made, the appeal abates, the same as the writ of error would in case of death before error assigned. (Graham's Pr., 965; Miller a. Gunn, 7 How. Pr., 159.)

Ira O. Miller, for the plaintiff.-I. There is no authority for allowing the appellant to discontinue without paying the judgment, after giving security to stay proceedings.

II. But it is objected that the plaintiff has no method of obtaining an affirmance, and therefore the appeal may as well be dismissed. We can propose several methods not yet passed upon. 1. We can appeal from the general-term decision. 2. We can have an administrator appointed here, and make him a party to this action, and then proceed with the appeal, 3. The administrator appointed in another State has already appeared, by his attorney, without restriction, or limitation, and although objected to, has been allowed a standing in court, both at special and general terms. And a notice of motion, or a notice of bail, without restriction is a general appearance in the case for all purposes. (Quick a. Merrill, 3 Cai., 133; McKenster a. Van Zandt, 1 Wend., 13; Eames a. Sitts, 2 Hill, 362; Quin a. Tilton, 2 Duer, 648.) 4. But if the administrator has no standing in court, then he cannot make this motion, and it must be denied.

III. But it is alleged that the respondent should have revived