Opinion
January, 1935.
Motion to dismiss appeal denied and motion to substitute administratrix of deceased plaintiff granted. Memorandum: Our determination is based upon the literal language of section 89 of the Civil Practice Act. We have not overlooked decisions which may seem to point in a general direction in conflict with our determination here. ( Wood v. Phillips, 11 Abb. Pr. [N.S.] 1; Carr v. Rischer, 119 N.Y. 117, 124; Matter of Tubbiolo, 146 App. Div. 323; Molloy v. Starin, 134 id. 542; Lutz v. Third Ave. R.R. Co., 44 id. 256; Kelsey v. Jewett, 34 Hun, 11.) Nevertheless, in none of the cases was the exact situation before the court which we are considering. The statute has been repeatedly amended and in our opinion, particularly in view of the amendments, the statute should now be literally construed. Motion for leave to appeal to the Court of Appeals on order entered November 14, 1934, denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals from order denying motion to dismiss appeal and granting motion for substitution of administratrix granted and questions for review certified.