Wade v. Kalbfleisch
New York City Court
This action was brought to recover damages for the breach of an alleged promise of marriage. The complaint set forth the contract, and charged the defendant with the breach of it. The answer, claiming that the undertaking of the defendant was conditional, admitted the refusal to marry, and set up special matter in justification. After the issue thus joined had been noticed for trial and the case put on the calendar, thé defendant died.
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This action was brought to recover damages for the breach of an alleged promise of marriage. The complaint set forth the contract, and charged the defendant with the breach of it. The answer, claiming that the undertaking of the defendant was conditional, admitted the refusal to marry, and set up special matter in justification. After the issue thus joined had been noticed for trial and the case put on the calendar, thé defendant died. The plaintiff now applied to have the action continued against the executors.
1Opinion of the Court
Neilson, Ch. J. [After stating the facts.]
Section 121 of the Code, under which this application is made, *17provides that no action shall abate by the death of a party, if the cause of action survive or continue; and that the court may, on motion, allow the action to be continued by or against the representatives.
The question is, whether a cause of action of this peculiar character dies with the person of the defendant, notwithstanding the breach committed in his-lifetime. In the absence of any known judicial determination by the courts of this State, the question is worthy of serious…
2Cases cited12 opinions
- Zabriskie v. . SmithNew York Court of Appeals · 1855
- Clayton v. . WardellNew York Court of Appeals · 1850
- Quin v. . MooreNew York Court of Appeals · 1857
- Haight v. . HaytNew York Court of Appeals · 1859
- Johnson v. . JenkinsNew York Court of Appeals · 1862
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