This is a motion to set aside the decision of this court made November 25, 1932, and the findings of fact thereunder, and to vacate the judgment entered thereon, on the ground that the sole plaintiff had died after the case had been submitted on briefs, without argument, and before the decision was rendered.
This case came here on appeal from a judgment of the Trial Term in favor of the former plaintiff, John E. MacLean, as executor of the last will and testament of Margaret Churchill, deceased, and was once argued before us, and reversed by a divided court. Because of an error in fact in the majority opinion of the court and the reasoning based thereon, a reargument was granted, on briefs thereafter to be filed. Accordingly, the judgment appealed from was again open before this court for review de novo.
A few days after the submission of the briefs, on the reargument, the sole plaintiff died on May 28, 1932. On November twenty-fifth following, a decision was rendered by this court, again reversing *5the judgment in favor of the plaintiff, as well as certain findings of fact found in his favor by the court below. By its terms the decision was rendered nunc pro tunc, and pursuant to the order entered thereon judgment was directed nunc pro tunc as of May 21, 1932, and thus entered.
The original plaintiff in whose favor the judgment was rendered was the sole residuary legatee in the will of Margaret Churchill. The present plaintiff was appointed administratrix- with the will annexed on January 9, 1933, and on January 18, 1933, was substituted plaintiff and respondent in this action, and now makes this motion.
I believe the judgment of reversal in this case is void, and that the motion should be granted, first, because there is no warrant in the decision for new findings, and second, because it contains new findings of fact against the deceased sole plaintiff, and finally, because the provisions of the Civil Practice Act require it. When the decision was rendered the plaintiff was dead, and the court knew it; and because of these facts the decision was withheld over a period of months. The form of the decision is as follows: “ Judgment reversed on the law and the facts, and judgment rendered nunc pro tunc in accordance with the opinion of Van Kirk, P. J. * * * Findings and order to be settled before Hinman, J. The court reverses findings of fact in the decision as follows: 6, 22, 35, 36, 37, 40 to 56, inclusive; also such findings of fact as are included in the conclusions of law.” (See 236 App. Div. 873.)
While a majority opinion was handed down with the decision above quoted, and while the opinion mentioned may be explanatory of the decision as rendered, it is not the decision, nor a substitute for it. The decision as handed down provides for no new findings, nor sets any hmitations for such, and thus there is no warrant for the new findings.
But the court not only rendered a judgment of reversal against a dead man, when it knew he was dead, but also adopted forty-seven new findings of fact against him, and thirteen conclusions of law thereon, thus making an original disposition of the issues raised by the pleadings. This court is a part of the Supreme Court, and authorized to make new findings in a proper case; but when it does so it is performing a function of original jurisdiction, a function of the Trial or Special Term, and is making an original decision. Thus when new findings were made against the sole plaintiff, divesting him of a property right, after he had died, it was making an original decision against him. And a section of the Civil Practice Act which has to do with judgments provides as follows: “ A judgment shall not be entered against a party who *6dies before a verdict, report or decision is actually rendered against him. In that case, the verdict, report or decision is void.” (Civ. Prac. Act, § 478.)
It may also be observed that the decision as rendered contemplates notice to the party who had died, because it provides for “ Findings and order to be settled before Hinman, J.,” and notice of such “ settlement ” was required by the justice, and actually served upon the attorney who had appeared for the plaintiff. It is academic that the attorney’s power to represent or to bind the plaintiff ceased when the plaintiff died. Nevertheless, these new findings were made, not by the court, but by a justice thereof, against a dead man when there was no one to represent him.
Cases are cited in the prevailing opinion on this motion as authority for the proposition that in an equity case a decision may be rendered against a party after his death, when the case was actually submitted during his lifetime. Such of those cases as were not decided before practice under the Code was adopted, seem to have involved orders at the foot of the judgment, not affecting the rights of the parties as adjudicated, or judgments of affirmance in favor of the representative of a deceased party. None of those cases, as it seems to me, are in point here, or are authority for the case now under consideration, where an original decision is being rendered against a sole plaintiff who has died. And when Code practice was adopted following the Constitution of 1846, distinctions in practice between actions at law and suits in equity were abolished; and we should be no longer free to seek relief by resort to rules of ancient equity practice, when the Civil Practice Act seems to provide the remedy. In dealing with the subjects of abatement and continuance, the Civil Practice Act provides the procedure to be followed when a- sole plaintiff or a sole defendant dies; and requires the court, if the cause survives, to allow or compel the action to be continued by or against a representative or successor in interest. (Civ. Prac. Act, § 84.) No reason has been suggested, on the argument or in the briefs, why this section should not be applied in the case before us, especially when an original decision remains to be made.
The motion should be granted.
Bliss, J., concurs in result.
Motion to vacate and set aside decision and for a reargument denied. *
For additional decision of March 21, 1933, amending findings, see 238 App. Div.-. — [Rep.