Waldorph v. Bortle
New York Supreme Court
This was a suit brought to recover possession of real estate, situated in the county of Columbia, being virtually an action of ejectment.
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This was a suit brought to recover possession of real estate, situated in the county of Columbia, being virtually an action of ejectment. After an answer was put in, the cause being ready for trial, the defendant died, intestate, on 7th December, 1849, leaving Jane, wife of William Chadwick, Helen Bortle, Elizabeth Bortle, and Eve Maria Bortle, her only children, and heirs-at-law; all of whom were over 21 years of age, and resided in the county of Columbia, and claim the premises for the recovery of which said action was brought. On an affidavit, setting forth the above stated facts, the…
1Opinion of the Court
Parker, Justice.
At common law the action died with the party, (James v. Bennett, 10 Wend. 540.) The Revised Statutes (8 R. S. 404, 3d ed. § 33) provided that the action of ejectment, should not be abated by the death of any plaintiff, or of one of several defendants, after issue and before verdict or judgment, and authorized proceedings to substitute the names of thosé who might have succeeded to the plaintiff’s title; and in case of the death of one of the defendants, the cause might proceed against the other defendants. Such proceedings were by scire facias, (Boynton v. Hoyt, 1 Denio, 53 ;…
2Cases cited3 opinions
- Boynton v. HoytCourt for the Trial of Impeachments and Correction of Errors · 1845
- Shaver v. M'GrawNew York Supreme Court · 1834
- James v. BennettNew York Supreme Court · 1833
3Cited by2 opinions
- Tompkins v. WhiteNew York Supreme Court · 1853
- Delfelder v. Teton Land & Investment Co.Wyoming Supreme Court · 1933