Benjamin's Executors v. Smith

17 Wend. 208

Opinion

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 entered without.

Most clearly the suit abated, and judgment must go for the defendant