Banta v. Marcellus
New York Supreme Court
In Equity. An order was made, at the special term of this, court held in Schenectady, in November, 1847, requiring Jacob Banta, Isaac Marcellus and Henry Banta, executors of the last will and testament of John H. Banta deceased, the plaintiff, ta show cause before this court at the December general term in Saratoga county for 1847, why this suit should not stand re-, vived in their names, or the bill in this cause be dismissed so far as the interests of such executors are…
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In Equity. An order was made, at the special term of this, court held in Schenectady, in November, 1847, requiring Jacob Banta, Isaac Marcellus and Henry Banta, executors of the last will and testament of John H. Banta deceased, the plaintiff, ta show cause before this court at the December general term in Saratoga county for 1847, why this suit should not stand re-, vived in their names, or the bill in this cause be dismissed so far as the interests of such executors are concerned. From the papers used on the motion, it appeared that the original bill was a creditor’s bill, filed in 1837,…
1Opinion of the Court
By the Court, Willard, J.
As this cause abated by the death of a sole plaintiff, before decree, the defendants could not revive the suit by bill of revivor. (9 Paige, 393. 2 Barb. Ch. Pr. 41.) Their only remedy is under the statute, (2 R. /S'. 185, §§ 118,119,) by petition to the court, for an order on the personal representatives of the deceased to show cause on a certain day to be named in the order, why the suit should not stand revived in their names, or the bill be dismissed, so far as the interests of such representatives are concerned. By the 119th section, the court is authorized, if…
2Cases cited2 opinions
- Devoy v. BoyerNew York Supreme Court · 1808
- Arnoux v. SteinbrennerNew York Court of Chancery · 1828
3Cited by3 opinions
- Livermore v. . BainbridgeNew York Court of Appeals · 1872
- Reid v. Stuart's Ex'orWest Virginia Supreme Court · 1882
- Hallett v. HallettNew York Court of Common Pleas · 1894