Opinion
April 22, 1927.
Appeal from Supreme Court of Westchester County.
H.K. Bender, for the appellant.
Cyril F. Dos Passos, for the respondent.
Order substituting respondent Scher, assignee of the cause of action, as plaintiff, affirmed, with ten dollars costs and disbursements, upon opinion of Mr. Justice TAYLOR at Special Term. Appeal from prior order continuing action in name of executor, dismissed without costs, as academic, the executor having assigned the cause of action.
KELLY, P.J., MANNING, YOUNG, KAPPER and HAGARTY, JJ., concur.
The following is the opinion of the Special Term:
The action was brought by a wife against her husband to recover sums of money alleged to be due under a separation agreement. The wife died during the pendency of the action, a resident of New Jersey, in which State her will was duly probated and letters testamentary duly issued to the executor thereof. This foreign executor has assigned said claim to the applicant, by an instrument under seal reciting a valuable consideration. That such assignment vests the claim in the assignee is not doubtful. ( McNulta v. Huntington, 62 App. Div. 257; Maas v. German Savings Bank, 73 id. 524, 527; affd., 176 N.Y. 377.) Some time since such executor was substituted herein as plaintiff. Counsel on both sides then overlooked the circumstance of the repeal of former section 160 of the Decedent Estate Law. However, as the said order stands unreversed, it is valid. Now there has been a further devolution of the claim in suit by reason of the assignment above referred to. The claim, which is on contract, accrued to the deceased wife of the defendant in her lifetime; hence, under plain principles, it passed as of the date of her decease to the executor of her will; and now is vested, as aforesaid, in his assignee. The latter's motion for a substitution of herself as plaintiff (Civ. Prac. Act, § 83), and for the other relief prayed for in the moving affidavits, is granted, with ten dollars costs to the moving party to abide the event of the action. Settle order on notice.
Added by Laws of 1920, chap. 919, as amd. by Laws of 1925, chaps. 253, 603; repealed by Laws of 1926, chap. 660. — [REP.