Wade v. Kalbfleisch
New York Court of Appeals
Mary F. Wade brought an action in the city court of Brooklyn, against Martin Kalbfleisch, for breach of promise of marriage. Pending suit, the defendant died. A motion on behalf of the plaintiff to revive the action against his executors, was denied at special term, the opinion of Neilsoh, Oh. J. thereat, being reported in 15 Abb.
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Mary F. Wade brought an action in the city court of Brooklyn, against Martin Kalbfleisch, for breach of promise of marriage. Pending suit, the defendant died. A motion on behalf of the plaintiff to revive the action against his executors, was denied at special term, the opinion of Neilsoh, Oh. J. thereat, being reported in 15 Abb. Pr., 16. The general term, on an appeal from the order denying the motion, affirmed the same, with costs, February 10, 1874. From the order of affirmance, the plaintiff now appeals to the court of appeals. I. The cause of action arose and was founded upon contract…
1Opinion of the Court
Church, Ch. J.
The question involved in the order appealed from, is whether an action for a breach of promise of marriage can be revived against the executors or administrators of the promisor. Originally at *107•common law, all actions abated by the death of a sole plaintiff or defendant, and if the cause of action survived, a new writ was necessary.
This rule has been somewhat modified in England, by statute and judicial decisions (13 N. Y., 333). In this State it is regulated by statute. The Code (§ 131), provides that no action shall abate by the death, marriage,. or other disability of a party…
2Cases cited10 opinions
- Zabriskie v. . SmithNew York Court of Appeals · 1855
- Maguire v. MaguireCourt of Appeals of Kentucky · 1838
- Thorn v. . KnappNew York Court of Appeals · 1870
- White v. WhiteNew York Supreme Court · 1849
- Wells v. PadgettNew York Supreme Court · 1850
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3Cited by2 opinions
- Mason v. BreslinThe Superior Court of New York City · 1870
- Mason v. BreslinThe Superior Court of New York City · 1870