I dissent. I do not think that this is one of the cases in which the court, have-power to exercise any discretion. The right to -subi stitute the executor of a deceased party is solely statutory,, and it can only be done as to the whole action. There is no provision in the Code for the joinder of two causes of action, one of which surivives and! the'other does not, and for that, reason'I think that' when. ' two of sfich causes are joined, if the defendant dies, the' plaintiff *309cannot continue the executor as to the living cause of action, striking out the other.
But if I am wrong, and there is a discretion in the court, I do not think that it is proper to exercise such discretion in favor of a confessed adulteress so as to enable her to recover the wages of her sin out of the pockets of the widow and children of her paramour, although she alleges that she acted as his housekeeper at the time she was living with him as his mistress.
Order reversed and motion granted, upon condition that plaintiff consent to strike out the first cause of action, with ten dollars costs of this appeal and the disbursements to abide the event.