#### August Hoeflin et al., Respondents, v. William A. Gedney et al., Executors, etc., Appellants.

(City Court of New York, General Term,

May, 1898.)

Revivor against executors — Terms — Restoration of the case to the day-calendar.

An order, reviving an ¡action against executors, was made after -due service of the papers upon them and upon the appearance of an attorney for them and from-'the order the executors never appealed. It granted leave to serve a supplemental complaint, but without prejudice to prior proceedings or to the. position 'of the- ¡case on the calendar, whereon it had been reserved generally. The or.der did not require a new note of issue,

Held, that the order was a valid exercise of the power of the court and, standing unattacked, gave the court power to restore the case to the day calendar. ; ,

■ Appeal from an order restoring cause ito the day calendar for trial.

John E. Meyer, for appellants.

E. W. S. Johnston, for respondents.

O’Dwyer, J.

The order for revivor recites that it was entered after proof of due service of the moving papers for a revivor upon ■ the.executors. It also recites that an -attorney appeared on behalf of said executors, ‘who did not oppose -the granting of the motion. The authority of that attorney to -appear is disputed, but the order was .granted after! service- of the notice of motion upon the executors. The order was never ¡appealed from,' and no motion was made to vacate it, and that order provides that the -granting of leave to serve. a supplemental complaint shall be without prejudice to the proceed*519ings already had in this action, and without prejudice to the position of the case upon the calendar of this court.

This court has complete control over its own calendar, and has power ¡to provide that after issue has been joined and a note of issue filed, a new note of issue is not necessary, where it substitutes the personal representatives of a deceased defendant in his place and stead; 'and it has power to grant that substitution without prejudice to the proceedings had in the action, and ¡to the original position of the case upon the calendar. Having that power and having exercised it, and the order which did exercise the power and granted the motion not having been appealed from, reversed, vacated or annulled, it is manifest that the court had power to restore the cause to the day calendar for trial. Hunnewell v. Shafer, 30 N. Y. St. Repr. 831.

As long .as. the order of revivor, providing that the revivor should he without prejudice to the. position of this cause upon the calendar, stood, the order that was granted necessarily followed it, .and the appeal from that order does not bring up ¡anything before this court.

The original order of revivor having been entered upon notice to the executors, and an attorney having appeared on their behalf, and not opposing 'the granting of ¡the motion, they were hound either to ¡appeal from ¡that order, if they felt aggrieved by the terms thereof, or they "were hound to move to vacate (the order, if it were not granted upon notice to them ¡and, if the attorney who appeared for )them did not have power to do so. That they have not done; and the terms of the order standing and pauviding that the position of the case on the calendar, which was reserved generally, should remain, and that the revivor should he without prejudice to such position on the calendar and to the proceedings already held in the action, it .was a necessary result that the court, when moved to austore the case to the day calendar, (should grant that order.

Order appealed from affirmed, with $10 costs.

Schuchmaw, J., concurs.

Order affirmed, with $10 costs.