I dissent from the conclusion arrived at by the majority of the court. In the opinion it is stated as follows“ After several hearings had been had before the referee the appellant objected- to the continuance of the proceeding upon the ground that the general guardian was dead and that her ward was then over twenty-one years of age. The objection was overruled and an exception -taken. The objection was properly overruled, because at the time the same was made there was no proof before the referee establishing the death of the general guardian, or that -her ward was. over twenty- • one years of age, other than that set forth in the papers upon which the original ordér was based.’. At a subsequent hearing, however, it did appear that the general guardian was dead (she having died on the 19th of December, 1899), and that her ward was, at the time the order of reference was made, over twenty-one years of age. But these facts did not destroy the right to an accounting, nor did the proceeding instituted for that purpose abate by reason thereof. (Code Civ. Prod. § 755.) After the death of the general guardian and the ward had attained her majority all that was necessary was a suggestion of these facts upon the record ■ and that the proceeding thereafter be continued in the name of the real party in interest: (Breese v. Metropolitan Life Ins. Co., 37 App. Div. 152.) The appellant, however, seems to have been content with continuing the proceeding without objection, notwithstanding such suggestion was not then made upon the record. Several hearings were thereafter had and he did not object in any way to what was done, nor does the record disclose a single objection in this respect until after the hearing had been closed, when *107he contented himself with moving to dismiss the proceeding/'" etc.
It seems that the appellant, instead of in any way sleeping upon his rights, called the attention of the court at the earliest possible, moment to the fact that there was no moving party before it, the initiator of the proceeding being dead. It is said that there was no proof of the fact before the referee when the objection was raised at the second hearing — not as stated in the opinion after several hearings; there had been but one. The appellant was not called upon to offer proof of the fact of the death of the moving party. The fact existed and the counsel for the dead petitioner went ahead at his peril. Would it be claimed for a moment that if a counsel went to trial with the plaintiff, his client, dead and took a judgment, that it would be of the slightest value ? I think not. It is clearly the duty of the counsel for a party seeking relief either by action or special proceeding to see that he has a client in court and not in the'grave. It seems to me that it is an anomaly to hold that a defendant can be pursued by a dead plaintiff unless he proves that the plaintiff is dead and offers such proof at the earliest possible moment.
It is urged that all that was necessary was a suggestion upon the record. But the suggestion was necessary, and not being made there was no one before the court. We are further told that the appellant seems to have been content with continuing the proceeding without objection, notwithstanding such suggestion was not then made upon the record. As he objected at every opportunity he had, I cannot see how it can be said that he proceeded without objection. This is the first time, I think, that it has ever been held that it was the duty of the defendant to revive a proceeding or action.
I am further of the opinion that the court has no jurisdiction to proceed in this summary way. It is true that the appellant was an attorney, but he is not being proceeded against because of any conduct as an attorney.
Orders affirmed, with ten dollars costs and disbursements.