Livermore v. . Bainbridge
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial district, affirming an order of Special Term directing that the action he revived and continued against the executors of the defendant. (Reported below, 42 How. Pr. R., 53.) The action was brought to recover an alleged balance of account arising on the purchase and sale of stock.
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Appeal from order of the General Term of the Supreme Court in the first judicial district, affirming an order of Special Term directing that the action he revived and continued against the executors of the defendant. (Reported below, 42 How. Pr. R., 53.) The action was brought to recover an alleged balance of account arising on the purchase and sale of stock. Defendant’s answer set up a counter-claim and asked affirmative relief; issue was joined thereon and the action was referred to a referee for trial. Pending the trial of the action, defendant died. In actions at law, prior to the Code,…
1Opinion of the CourtRapallo, J.
Under the Eevised Statutes an action at law abated on the death of a sole plaintiff or defendant before interlocutory or other judgment or verdict, and no proceedings could be had to revive it. (2 R. S., 386, 388; Keene v. La Farge, 1 Bosw., 671.) By 2 R. S., 576, § 2, a writ of scire facias might issue to continue a suit by or against the representatives of either party who should have died in the progress thereof. But this provision was held to apply only where, under the existing law, the right to continue the action was recognized, and not to extend that right. (Webber’s Executors v.…
2Cases cited7 opinions
- Webbers' Executors v. UnderhillNew York Supreme Court · 1838
- Sprague v. GrahamNew York Court of Chancery · 1842
- Keene v. La FargeThe Superior Court of New York City · 1858
- Potter v. . Van VrankenNew York Court of Appeals · 1867
- Hosack v. RogersNew York Court of Chancery · 1842
2 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Holsman v. . St. JohnNew York Court of Appeals · 1882
- Robinson v. . GoversNew York Court of Appeals · 1893
- Reilly v. . HartNew York Court of Appeals · 1892
- Crozier v. United States Steel Corp.New York Supreme Court · 1932
- Stevens v. MelcherNew York Supreme Court · 1889
5 more not listed; retrieve them via the Exa API.