Jackson ex dem. Low v. Reynolds
New York Supreme Court
On an affidavit- stating the death of one of the les» [*21] sors of *the plaintiff, from belief, information, diligent search, and inquiry, on the behalf of the defendant, moved, to strike out of the declaration one count wholly, (a) and in all others the name of Drake, with costs.
1Per curiam
The motion must- be granted. It has been before decided, that a defendant may thus come in and *35move, on the death of a party before the commencement, of the suit. As to the objection, that the application is out of season, the answer is, that it is never out of season when, on the ground of an original irregularity in the plaintiff himself. Therefore, the not coming in earlier cannot be urged. [1] The affidavit of the defendant furnishes such evidence of the facts as is prima facie sufficient; and if not true, ought to have been denied by the plaintiff, especially as it is in his power; for…
2Cases cited2 opinions
- Doty v. Russell & PearlNew York Supreme Court · 1830
- Nichols v. NicholsNew York Supreme Court · 1833
3Cited by1 opinion
- Coleman v. DoeIllinois Supreme Court · 1840