Miller v. Gunn
New York Supreme Court
Albany Special Term. Motion that action be continued in the name of the personal representatives of the defendant. The action was for slander. The plaintiffs in April 1851, obtained a verdict and perfected judgment thereon. From this judgment the defendant appealed to the general term, after perfecting his appeal, and before the cause had been argued upon the appeal the defendant died.
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Albany Special Term. Motion that action be continued in the name of the personal representatives of the defendant. The action was for slander. The plaintiffs in April 1851, obtained a verdict and perfected judgment thereon. From this judgment the defendant appealed to the general term, after perfecting his appeal, and before the cause had been argued upon the appeal the defendant died. His personal representatives applied for an order directing the action to be continued in their"name.
1Opinion of the Court
Harris, Justice.
The objection that there was no necessity for this motion, so far as the pending appeal was concerned, was well founded. The case is analagous to the writ of error at common law, where, if error had not been assigned, the writ abated by the death of the plaintiff in error,- but if the death happened after error assigned, the cause proceeded. In such case, the court of review directed judgment to be entered upon its decision, as of a day anterior to the death of the party. So in this very case, since this motion was made, the appeal has been argued at a general term of this…
2Cited by2 opinions
- Warren v. EddyNew York Supreme Court · 1860
- Black v. ShawCalifornia Supreme Court · 1862