Cheney v. Rankin
New York Supreme Court
On the 2d day of September, 1896, Phoebe A. Cheney and-Edward D. Cheney were the owners, as tenants in common, of certain real estate in the city of Troy. On that day an action of partition was commenced by Phoebe A. Cheney, as plaintiff, in which action Edward D. Cheney and Margaret A. Cheney, his wife, Mary C. Perry, Rice C. Bull, Edward McGraw, Rollin 0. Reynolds, Albert E. Grant and Samuel O. Gleason were defendants.
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On the 2d day of September, 1896, Phoebe A. Cheney and-Edward D. Cheney were the owners, as tenants in common, of certain real estate in the city of Troy. On that day an action of partition was commenced by Phoebe A. Cheney, as plaintiff, in which action Edward D. Cheney and Margaret A. Cheney, his wife, Mary C. Perry, Rice C. Bull, Edward McGraw, Rollin 0. Reynolds, Albert E. Grant and Samuel O. Gleason were defendants. Notice of pendency of the action was duly filed on the 4th day of September, 1896. The complaint alleges that Margaret A. ■Cheney is the wife of Edward D. Cheney and as such…
1Opinion of the CourtChase, J.
The cause of action, stated in the complaint in the. -case of Cheney against Cheney and others, survived. As the cause of action survived, the action itself did not abate. Code Civ. Pro., .§ 755.
Section 757 of the Code of Civil Procedure provides: “ In case of the death of a sole plaintiff * * * if the cause of action •survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest.”
Phcebe A. Cheney died intestate, and her children, Edward D. ■Cheney and Carrie P. Bankin, were her successors in…
2Cases cited3 opinions
- Hoffman v. TredwellNew York Court of Chancery · 1837
- Crowley v. MurphyAppellate Division of the Supreme Court of the State of New York · 1898
- Rogers v. AdrianceThe Superior Court of New York City · 1861