Markell v. Nester
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, Monroe county. Action by John H. Markell against Samuel K. Nester. From an order substituting Nellie E. Chamberlain, administratrix, on plaintiff’s death, and also substituting attorneys for plaintiff, defendant appeals.
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Appeal from special term, Monroe county. Action by John H. Markell against Samuel K. Nester. From an order substituting Nellie E. Chamberlain, administratrix, on plaintiff’s death, and also substituting attorneys for plaintiff, defendant appeals. Appeal from an order made at the Monroe special term on the 28th day of March, 1898, substituting Nellie E. Chamberlain as administratrix of the goods, chattels, and credits of the said John H. Markell, as plaintiff, in the place of said Markell, deceased, and also substituting attorneys for the plaintiff. On the 14th day of January, 1892, W. 0.…
1Opinion of the CourtHardin, P. J.
Section 757 of the Code of Civil Procedure provides as follows:
“In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest.”
An inspection of the complaint shows that the cause of action stated is one which survives. It is provided by section 761 of the Code of Civil Procedure that, after the death of the plaintiff, the court may “in its discretion, upon notice to such persons as it directs, and upon the…
2Cases cited6 opinions
- Lyon v. . ParkNew York Court of Appeals · 1888
- McCarthy v. . McCarthyNew York Court of Appeals · 1893
- Holsman v. . St. JohnNew York Court of Appeals · 1882
- Barnes v. City of BrooklynAppellate Division of the Supreme Court of the State of New York · 1897
- Mason v. . SanfordNew York Court of Appeals · 1893
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