Schell v. . Devlin

*335 Andrews, J. The motion for substitution was made upon the affidavit of Thomas U. Rodman, and upon the pleadings, judgment and proceedings in the action, showing that Rod-man and Adams, after the commencement of the action, and• before the recovery of judgment therein, became the owners of the claim upon which the action was brought by written assignment from the original plaintiff for their own ~tise, and that `they have ever since been the absolute owners thereof, and that intermediate the assignment to them and the recovery of the judgment, the original plaintiff was adjudged a bankrupt, and had executed an assignment of his property to an assignee appointed in the ~roceedings, which assignment still remains in force. It also appears from the motion pa~rs that the original plaintiff died after judgment was recovered in the action, leaving no issue, bu~ leaving a widow and brothers and sisters, his only next of kin; that no administrator has been appoin~ed of the estate of the decedent, and that he left no property, real or personal. The motion was made upon notice to the defendants' attorneys, and to the widow and next of kin of the decedent. The appellants (defendants in the action) appeared and opposed the motion, but no issue was taken upon any of the facts appearing in the motion papers, and the motion w~s granted. They appealed from the order of substitution, and at the hearing before the General Term the respondents produced and filed the written stipulation of the assignee in bankruptcy of the original plaintiff, waiving notice of motion and all objections to the order of substitution. We think the order should be affirmed. The fact appearing on the motion showed, beyond reasonable doubt, that the, personal representatives of Mr. Schell could have no interest in the judgment. If the assignment to the respondent was for any reason invalid or ineffectual, the claim passed to the assignee in bankruptcy. There is no inflexible rule that the court, in a case like this, cannot proceed without the appointment of an administrator of the original plaintiff. The interest of the appellants in the question is that the person substituted should be the real owner of the claim, or if not, that the real claimant shall be con- *336 eluded by the order. Assuming that an administrator of the original plaintiff, when he may be appointed, would not be concluded by the notice to the widow and next of kin, or by the order made, the motion papers show that the interest of the original plaintiff was divested before judgment. The claim that the decedent, or his personal representatives, have or may have any interest in the matter, is not supported by any affirmative evidence, but seems to be conclusively negatived by the facts disclosed. We think that the stipulation of the assignee in bankruptcy was properly received and considered by the General Term. It removed any objection founded upon the fact of want of notice to him of the proceedings, and concluded him from subsequently questioning the validity of the order. The fact that he was not concluded by the order when made did not prevent the General Term from making him a party to the motion, by receiving and filing the stipulation. • The question is one of practice, and we think the defendants cannot object, because the court, for greater security and by way of precaution by this proceeding, removed one of the objections made to the order. The order should be affirmed. All concur. Order affirmed.