Philipe v. Levy , 3 N.Y.S. 664 ( 1888 )

Truax, J.

Antonio Philips was a resident of the state of Alabama. Judgment was rendered against him in this action by default. After the rendition of the judgment the said Antonio Philips died, and the appellant, Ann M. Philips, qualified as his executrix in the state of Alabama. She has not taken out letters in this state. Under this state of facts the said Ann M. Philips made a motion at special term to open the default herein. That motion was denied, and from the order denying the motion the said Ann M. Philips appeals. I am of the opinion that the appeal should be dismissed. Ann M. Philips is not a party to the action, and therefore is not within the provision of section 1294 of the Code of Civil Procedure. She is entitled to become a party, and may appeal when she has complied with the provisions of section 1296 of the Code. Appeal dismissed, with costs. All concur.