Jarvis v. Felch
The Superior Court of New York City
Motion to set aside, for irregularity, an order dismissing the complaint. This was an action upon a promissory note. In August, 1860, the plaintiff died. Ho order was entered continuing the action in the name of the representatives of the plaintiff. In January, 1861, the defendant, not having been apprised of the death of the plaintiff, took an order dismissing the complaint upon default. The plaintiff’s attorney makes the present motion.
1Opinion of the CourtMonell, J.
By section 121 of the Code it is provided that no action shall abate by the death of a party; but the court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by the representative. The death of a sole plaintiff, although it does not, in the language of the Code, “ abate ” the action, suspends all further proceedings until there is a revival by the personal representative of the deceased; so that no step can be taken in the further prosecution of the action until it has been continued by the order of the court.…
2Cases cited1 opinion
- North v. NorthNew York Court of Chancery · 1845
3Cited by4 opinions
- Cole v. Parker-Washington Co.Supreme Court of Missouri · 1918
- Murphy v. RedmondSupreme Court of Missouri · 1870
- Arents v. Long Island RailroadAppellate Division of the Supreme Court of the State of New York · 1899
- Piering v. HenkelCity of New York Municipal Court · 1888