Summary
explaining that the authority of the attorney who had been representing the plaintiff "ceased upon [her] death," and therefore, the attorney could not file a notice of appeal in her behalf
Summary of this case from Glaze v. StateOpinion
Submitted June 9, 1941
Decided June 19, 1941
Appeal from the Supreme Court, Appellate Division, Third Department, SCHIRICK, J.
Robert G. Blabey for motion.
John M. Schneider opposed.
The authority of the attorney ceased upon the death of Mary L. Hart before the judgment of the Appellate Division was entered. Notice of appeal in her behalf, served before any personal representative was appointed is futile and until such appointment no order of substitution can be made. The notice of appeal is effective in so far as it named other appellants, but since the obligation of the surety upon the undertaking on appeal names all the plaintiffs as appellants and principals, the respondent may properly question whether it could be enforced when in fact one of the principals named is not a party to the appeal.
Motion granted to the following extent: Appeal dismissed, with costs, and ten dollars costs of motion, unless within fourteen days the appellants serve a new undertaking. Substitution ordered.