this volume. Or if the action affects the title to real estate, allege heirship of proposed respondent, or devise to him; see Form 1164, p. 1477]. day of IV. That the said Y. Z. has appealed from said judgment [or, order] to [the Appellate Division of the Supreme Court for the Department, on the 19 [and state condition of appeal as to stay, etc. If order to show cause is asked, state as on p. 1172]. [Jurat.] FORM No. 2109. [Signature.] Order compelling the substitution of representative of deceased adverse party. [Title (court order) and recitals as in Form 820, p. 1174 of this volume.] ORDERED, that said M. N., as the executor [or other description] of A. B., be and he is hereby substituted as respondent in place and stead of A. B., deceased, as the respondent in the appeal brought by the above-named Y. Z. from the judgment [or, order] entered herein the day of 19 Enter: [signature of judge by initials of name and title.] FORM No. 2110. Affidavit to move to substitute personal representative of party dying after [Title as in Form 2108.] [Venue.] appeal,69 T. Z., being duly sworn, says: I. That he has been the attorney for the defendant Y. Z. in this action down to the time of his death [or otherwise show relation to the cause]. 68 See note to Form 2108. This and the following Form can readily be adapted to the case of an application by a surviving party to substitute the proper representative of a deceased party where personal service of notice of the application has been made within the State upon him. N. Y. Code Civ. Pro., § 1299. For the purpose of substitution on appeal, the judgment with the cause of action survives even if the cause of action before the judgment could not. Blake v. Griswold, 104 N. Y. 613 (granting motion of personal representative of plaintiff respondent for leave to be substituted, where the plaintiff died pending appeal and before argument, and at the same time affirming the judgment); and see Moses v. Wooster, 115 U. S. 285. of II. That the said Y. Z. departed this life on the day 19, having duly made his last will and testament, by which he appointed S. Z. sole executor thereof; that the said will has been duly proved before the surrogate of the county of and letters testamentary thereon have been issued by the said surrogate to the said S. Z., who has qualified and entered upon the execution of such will, and now is such executor [or, allege intestacy and grant of letters of administration (see p. 1450), or interest of applicant as devisee or heir according to the fact (see p. 1477).] III. [If not sole party, may add:] That in this action other defendants are joined with the said Y. Z., but that as to the matters in controversy between the plaintiff and the said defendant last named, the said Y. Z. was sole defendant [or if otherwise, set forth the facts showing that it is necessary to a proper disposition of the matter to bring in the personal representatives]. IV. That judgment [or, an order] was entered in this action 19 [describing it], and that on 19, the said Y. Z., by deponent his attorney appealed from the said judgment [or order] to the [Appellate Division] of this [or, the ] Court, and was the sole appellant therefrom, and that such appeal is now pending before the said [Appellate Division], and the same has not been heard. on V. That the said S. Z. [as such executor] has succeeded to all the rights of the said Y. Z.; [that the cause of action herein continues against him as such executor.] VI. That deponent is the attorney for the said S. Z. [as such executor] in the defense of this action, and in the further proзecution of the said appeal. [If order to show cause is asked, state as on p. 1172.] [Jurat.] [Signature.] [Annex consent of executor to be substituted, duly acknowl edged.] FORM No. 2111. Order substituting personal representative of party dying after appeal. [Title as in Form 2108.] On reading and filing the affidavit of [etc.], by which it appears, among other things, that judgment was rendered herein on , and that the defendant Y. Z. has appealed from such judgment to the [Appellate Division] of the Supreme Court for the day of Department, and that such appeal is now pending therein, and the same has not been heard; that the said Y. Z. is the sole appellant, [and that as to all the matters in issue between the plaintiff and the said defendant, the said Y. Z. was the sole defendant;] that the said Y. Z. departed this life on the 19 having made his last will and testament, which has been duly proved before the surrogate of the county of ; that letters testamentary thereon have been issued to S. Z., who has duly qualified as executor of such will, and is now such executor; that the said S. Z., as such executor, has succeeded to all the rights of the said Y. Z., and that the cause of action herein continues against him as such executor; and on reading and filing the duly acknowledged consent of said S. Z., as such executor, to be substituted as defendant; and on motion of T. Z., attorney for the said S. Z., as executor aforesaid: ORDERED, that this action be and the same hereby is continued against the said S. Z., as executor of the last will and testament of the said Y. Z., deceased. Enter: [signature of judge by initials of name and title]. FORM No. 2112. Order of Appellate Division permitting successor in interest to intervene on appeal. ORDERED, that the motion of said to be made a party to this action be and the same is hereby granted, and the said is hereby made a party to and is hereby permitted to prosecute the appeal herein, and to serve a notice of appeal in his own behalf.70 FORM No. 2113. Stipulation for substitution of heirs and personal representatives pending [Title as in Form 2108.] appeal. It is hereby stipulated that, on filing the affidavit of day of verified the 19 , and the request of C. B. and D. B. indorsed thereon [and the request of the administrator and administratrix annexed thereto, all of which are hereto annexed], an order be entered in this action continuing the same in the name of the heirs at law of the said A. B., the appellant, 70 From the order in Koehler v. Brady, 82 App. Div. 279, 81 N. Y. Supp. 695. who has died pending this appeal, to wit [naming them - and also in the names of naming the personal representatives], as plaintiffs and appellants. On reading and filing the stipulation of the attorneys of record in this action, dated the affidavit of M. N., verified the the request of C. B. and D. B. annexed thereto : day of ORDERED, that this action be and the same is hereby continued in the names of , as heirs at law [and of as ad ministratrix and administrator] of the said A. B., deceased, as plaintiffs appellants. Enter: [signature of judge by initials of name and title]. FORM No. 2115. Affidavit to procure order or show cause why judgment or order should not be reversed, etc.72 [Title as in Form 2108.] [Venue.] A. T., being duly sworn, says: I. That he is the attorney for A. B., the plaintiff [and appellant] in the above-entitled action [or otherwise show relation to the cause]. II. That on the day of 19 an appeal to this court was taken by said A. B. from the judgment [or, order— describing it, with date and place of entry]. 71 Campbell v. Friedlander, 51 App. Div. 191, 64 N. Y. Supp. 241. 72 N. Y. Code Civ. Pro., § 1298. For another remedy, see § 1299. III. That the defendant Y. Z. died on the day of 19 13 [allege, if informed, as to will or intestacy, and letters, see Forms 2108, 2110]. IV. [State condition of the cause on appeal.] V. That the deponent has made diligent inquiries as to the persons interested in the estate of Y. Z., and the following are all the persons interested in said estate as far as can be ascertained: [insert names and residences, and, if any are infants, state which, and give names and residences of their guardians or persons with whom they reside.] VI. That no order has been made substituting any other person in place of said Y. Z. in said appeal. VII. That no previous application has been made for this order. [Jurat.] [Signature.] FORM No. 2116. Order to show cause why judgment or order should not be reversed, etc., where party dies after appeal, and no substitution has been had.74 [Title; see Form 2108.] On the annexed affidavit of A. T., verified the 75 day of ORDERED, that all persons interested in the estate of Y. Z., deceased, show cause before the [Appellate Division] of this court for the Department at a term thereof, to be held at the County Court House of the county of [or, at the Capitol, in the city of Albany], on the o'clock in the day of 19 76 at noon [or, as soon thereafter as counsel can be heard], why the judgment [or, order describing it] entered on the the day of 19, in the office of the clerk of Court] appealed from, should not be reversed [or, affirmed - or, why said appeal should not be dismissed]. 73 More than three months prior to application. Id. 74 This order must be made by the court in which the appeal is pending. N. Y. Code Civ. Pro., § 1298. 75 It seems that if the appeal is to the Appellate Division the order should be returnable at the Appellate Division, although granted by the 76 The return day must be not less than six months after making the order. N. Y. Code Civ. Pro., § 1298. |