Scranton v. Baxter
The Superior Court of New York City
Morion to strike a cause from the calendar of'the general term. The suit had been transferred from the supreme court. The action was trover, the cause was referred, and the referee reported in favor of the defendant. The plaintiff made a case with a view to move to set aside the report, and thereupon obtained a stay of proceedings. He subsequently died, and his executors refused to become parties to the suit.
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Morion to strike a cause from the calendar of'the general term. The suit had been transferred from the supreme court. The action was trover, the cause was referred, and the referee reported in favor of the defendant. The plaintiff made a case with a view to move to set aside the report, and thereupon obtained a stay of proceedings. He subsequently died, and his executors refused to become parties to the suit. The motion to strike the cause from the calendar was made in their behalf.
1Opinion of the Court
Campbell, J. (with the concurrence of two of his associates.)
The statute, 2 R. S. 381, § 4, provides for the entry of final judgments on verdicts in the name of the original parties, within two terms after verdict, notwithstanding the death of either party after verdict and before such final judgment is entered.
Judgment may be entered upon the report of referees the same as upon verdict; and this was expressly decided in Burhans v. *661Burhans, 10 Wend. 601; the statute applying virtually to both in spirit if not in terms.
This case is different from that of an executor prosecuting in his own…
2Cases cited2 opinions
- Burhans v. BurhansNew York Supreme Court · 1833
- North v. PepperNew York Supreme Court · 1839
3Cited by3 opinions
- Kissam v. HamiltonNew York Supreme Court · 1860
- Zalewski v. Zalewski, New York County Courts1922
- Haye v. RobertsonThe Superior Court of New York City · 1874