Markell v. Nester
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Samuel K. Fester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 30th day of March, 1898, substituting Fellie E. Chamberlain, as administratrix of the goods, chattels and credits of John H. Marlcell, as plaintiff in the place of said John H. Marlcell, who has died, and also substituting attorneys for the plaintiff.
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Appeal by the defendant, Samuel K. Fester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 30th day of March, 1898, substituting Fellie E. Chamberlain, as administratrix of the goods, chattels and credits of John H. Marlcell, as plaintiff in the place of said John H. Marlcell, who has died, and also substituting attorneys for the plaintiff. On the 14th day of January, 1892, W. C. Hazelton, attorney, commenced the action upon an agreement made by the defendant with the plaintiff, as the defendant’s agent…
1Opinion of the Court
Hardin, P. J.:
Section 757 of the Code of Civil Procedure provides as follows : “ In case of the death of a sole plaintiff, or a sole defendant, 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.”
An inspection of the complaint shows that the cause of action stated is one which survives.
It is provided by section 761 of the Code of Civil Procedure that, after the death of the plaintiff, the court may, “ in its discretion, upon notice to such persons as it directs, and…
2Cases cited4 opinions
- Lyon v. . ParkNew York Court of Appeals · 1888
- Holsman v. . St. JohnNew York Court of Appeals · 1882
- Barnes v. City of BrooklynAppellate Division of the Supreme Court of the State of New York · 1897
- Wright v. ChaseNew York Supreme Court · 1894
3Cited by1 opinion
- Cornelio v. ConnecticutDistrict Court, D. Connecticut · 2020