Holsman v. . St. John
New York Court of Appeals
Appeal from order of. the General Term of the Superior Court of the city of Bew York, made June 19, 1882, which affirmed an order of Special Term denying a motion to revive this action.
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Appeal from order of. the General Term of the Superior Court of the city of Bew York, made June 19, 1882, which affirmed an order of Special Term denying a motion to revive this action. This action was commenced in 1859, to recover for taxes and assessments imposed upon premises in the city of blew York during the years from 1854 to 1859, which the defendant, Louisiana St. John, as lessee of the premises, covenanted to pay, but failing to pay, the plaintiff, the lessor, paid the same. The defendant’s answer admitted the execution of the lease, her entry into possession, and the non-payment by…
1Opinion of the CourtTracy, J.
The cause of action having arisen out of contract, survived the death of the plaintiff, and passed to the administrator of her estate. (Zabriskie v. Smith, 13 N. Y. 333; McGregor v. McGregor, 35 id. 220; Potter v. VanRanken, 36 id. 623.)
At common law when a sole plaintiff to a legal action died before trial, the action abated; and there was no way to revive or continue it. , (1 Burrill’s Prac. 287; Benjamin’s Executors v. Smith, 17 Wend. 208.) If the cause of action survived or continued, a new action had to be brought in the name of the representatives of the deceased plaintiff. In 1848 the…
2Cases cited4 opinions
- Zabriskie v. . SmithNew York Court of Appeals · 1855
- Evans v. . ClevelandNew York Court of Appeals · 1878
- Livermore v. . BainbridgeNew York Court of Appeals · 1872
- Benjamin's Executors v. SmithNew York Supreme Court · 1837
3Cited by27 opinions
- Pringle v. . Long Island R.R. Co.New York Court of Appeals · 1898
- Cavanaugh v. ScottWisconsin Supreme Court · 1893
- Smith v. HarringtonWyoming Supreme Court · 1891
- German-American Coffee Co. v. JohnstonAppellate Division of the Supreme Court of the State of New York · 1915
- Hale v. ShannonAppellate Division of the Supreme Court of the State of New York · 1901
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