North v. Pepper
New York Supreme Court
Death of parties. The defendant demurred to the declaration, and the plaintiffs joined in demurrer in 1838. In July term, 1839, the cause was submitted to the court for decision, and in October term following, judgment was rendered for the plaintiffs on the demurrer, with leave to the defendant to amend on payment of costs. In July term, but whether before or after the cause was submitted for decision is left uncertain by the affidavits, the defendant died.
1Opinion of the Court
By the Court, Bronson, J.
The affidavits leave it doubtful whether the defendant died after the cause was submitted for decision. But independent of that consideration, I think the rule laid down in Spalding v. Congdon, 18 Wendell, 543, should not be applied to a case like this. It should be confined to cases where the judgment is final, as where a verdict has been rendered or a nonsuit ordered, which is confirmed by the court on a motion for a new trial; or where judgment is rendered on a special verdict, demurrer to evidence, or a writ of error. In such cases, if a party die while the cause…
2Cited by4 opinions
- Stewart v. NuckolsSupreme Court of Alabama · 1849
- Hollister v. LivingstonNew York Supreme Court · 1854
- Kissam v. HamiltonNew York Supreme Court · 1860
- Scranton v. BaxterThe Superior Court of New York City · 1850