Benjamin's Executors v. Smith
New York Supreme Court
Abatement of suit. The testator sued Smith, late sheriff of Chenango, for a fa Ise return. The defendant obtained two verdicts in his favor, both of which were set aside by this court (see 4 Wendell, 332, and 12 id. 404). Pending the motion to set aside the second verdict the testator died, and his executors now sue out a scire fticias to revive the suit.
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Abatement of suit. The testator sued Smith, late sheriff of Chenango, for a fa Ise return. The defendant obtained two verdicts in his favor, both of which were set aside by this court (see 4 Wendell, 332, and 12 id. 404). Pending the motion to set aside the second verdict the testator died, and his executors now sue out a scire fticias to revive the suit. The defendant demurs. insisted that as the cause of action survived, the case was within the equity of the statute allowing a judgment to be entered within two terms after verdict (2 R. S. 386, § 4). The manifest intention of which was-to…
1Opinion of the Court
By the Court,
Cowen, J.
It is agreed that the cause of action did not die with Benjamin; and it is also agreed that at common law, it would have abated. But it is insisted that the statute (2 R. S. 386, §4). providing that notwithstanding the death of a party after verdict, judgment may be entered within two terms from the rendition of the verdict, extends to this case. Clearly, however, it does not reach the case in any sense. Here is no verdict. It has been annulled, and the cause ordered to a new' trial. Beside, the statute does not authorize a sci.fa. In a proper case, judgment is to be…
2Cited by6 opinions
- Hegerich v. . KeddieNew York Court of Appeals · 1885
- Holsman v. . St. JohnNew York Court of Appeals · 1882
- Evans v. . ClevelandNew York Court of Appeals · 1878
- London v. HessbergNew York Supreme Court · 1933
- Kelsey v. JewettNew York Supreme Court · 1884
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