Wade v. . Kalbfleisch
New York Court of Appeals
Appeal from order of the General Term of the City Court of Brooklyn, affirming an order of Special Term denying a motion to revive the action against the executors of the defendant, now deceased. The action was for a breach of promise of marriage. The cause of action survived and the court below should have ordered a revivor of the action against the defendants. (McDonald v. Walsh, 5 Abb.
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Appeal from order of the General Term of the City Court of Brooklyn, affirming an order of Special Term denying a motion to revive the action against the executors of the defendant, now deceased. The action was for a breach of promise of marriage. The cause of action survived and the court below should have ordered a revivor of the action against the defendants. (McDonald v. Walsh, 5 Abb. Pr., 68; McNiff v. Short, 14 How., 463; Cheever v. Arnold, 15 N. Y., 345; 2 R. S., 138, § 1; 2 Edms. Stat., 144; Clayton v. Wardell, 4 N. Y., 230; Mellen v. Baldwin, 4 Mass., 481; Greene v. Watkins, 6…
1Opinion of the Court
Church, Ch. J.
The question involved in the order appealed from is, whether an action for a breach of promise of marriage can be revived against the executors or administrators of the promissor. Originally, at common law, all actions abated by the death óf a sole plaintiff or defendant, and if the cause of action survived, a new writ was necesy sary. This rule has been somewhat modified in England by statute and judicial decisions. (13 N. Y., 333.) In this State, it is regulated by statute. The Code (sec. 121) provides that no action shall abate by the death, marriage or other disability of a…
2Cases cited7 opinions
- Zabriskie v. . SmithNew York Court of Appeals · 1855
- Maguire v. MaguireCourt of Appeals of Kentucky · 1838
- Thorn v. . KnappNew York Court of Appeals · 1870
- White v. WhiteNew York Supreme Court · 1849
- Wells v. PadgettNew York Supreme Court · 1850
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