Chittenango Cotton Co. v. Stewart
New York Supreme Court
BY consent of parties, this action was referred, and after the reference the defendant died, and the action has been revived against his executors. The referee allowed an amendment of the summons and complaint so as to change the party plaintiff from “Ebenezer Pennock, President of the Chittenango Cotton Company” to “The Chittenango Cotton Company.”
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BY consent of parties, this action was referred, and after the reference the defendant died, and the action has been revived against his executors. The referee allowed an amendment of the summons and complaint so as to change the party plaintiff from “Ebenezer Pennock, President of the Chittenango Cotton Company” to “The Chittenango Cotton Company.” After the amendment was allowed, the complaint, as thus allowed to be amended, was served, the defendants served an amended answer, and the plaintiff replied. The defendants now move to vacate the reference, and for other relief.
1Opinion of the CourtHardin, J.
1. The death of the defendant, and the revival of the action in the name of the personal repre*424sentatives, do not operate to vacate the order, of reference; and the defendants, after appearing before the referee and commencing the trial, have waived the right to object to the validity of the reference on the ground of such death, and revival in the name of the representatives.
In Moore v. Hamilton, (44 N. Y., 673,) Leonard, C., says: “The order of reference was not affected by the death, or the substitution of the new party;” and at page 672 he also says: “The new or substituted party takes the…
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