Heinmuller v. Gray
The Superior Court of New York City
Appeal from order. The action was brought against John C. Abbott and Hiram B. Gray, as indemnitors of the sheriff, for damages in trespass in taking and carrying away plaintiff5 s goods under process of court directed against a stranger. After trial and verdict, judgment was entered on June 10th, 1871, in favor of the plaintiff, for $2,481-^%-. On defendant’s appeal to the General Term, the judgment was reversed and a new trial ordered, with costs to abide the event.
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Appeal from order. The action was brought against John C. Abbott and Hiram B. Gray, as indemnitors of the sheriff, for damages in trespass in taking and carrying away plaintiff5 s goods under process of court directed against a stranger. After trial and verdict, judgment was entered on June 10th, 1871, in favor of the plaintiff, for $2,481-^%-. On defendant’s appeal to the General Term, the judgment was reversed and a new trial ordered, with costs to abide the event. About the 27th day of January, 1872, the defendant, Hiram B. Gray, died, and Nancy Gray was appointed administratrix of the…
1Opinion of the Court
By the Court.—Freedman, J.
The appellant’s claim, upon which her counsel rested his argument, that the order appealed from is illegal, for the reason that the action cannot he continued against her, is not well founded.
Section 121 of the Code provides, that no action shall abate by the death of a party, if the cause of action survive and continue. The legal effect of this provision, in its application to the case of the death of a defendant, generally, is, that the action is not abated, but merely suspended by such death, if an action for the same cause may be maintained against the personal…
2Cases cited8 opinions
- Voorhis v. . Childs'New York Court of Appeals · 1858
- United States v. TeschmakerSupreme Court of the United States · 1860
- Union Bank v. . MottNew York Court of Appeals · 1863
- People v. GibbsNew York Supreme Court · 1832
- Potter v. . Van VrankenNew York Court of Appeals · 1867
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