O'Brien v. O'Brien

The attorney for the plaintiff, Edward O’Brien, deceased, has moved to substitute the executrix as plaintiff in this partition action. He also moves to confirm the report of the referee which allocates the interests of the *434parties. Defendants argue that the partition action has abated because of the death of one of the joint tenants. They seek dismissal of the action and cancellation of the notice of pendency.

Generally, death of a joint tenant while a partition action is pending eliminates the deceased’s interest, and title vests in the survivor. (Ellison v Murphy, 128 Misc 471.) Plaintiffs…