Bradstreet v. Clark

18 Wend. 326

• Court: New York Supreme Court
• Decided: November 15, 1836
• Status: Published

Opinion

By the Court,

Cowen, J.

[621] The suit abated by the death of the tenant, and is gone forever. This was so at common law in all actions, real and personal-, oh the death of either party before judgment. (Stokes v. Porter, Benl. 74, 5 and 6 Ph. and Ma. Mich. T.) The statute has provided for a few cases of substitution or revivor. Among these are the death of the defendant after interlocutory judgment, where the cause of action would he good against his personal representatives. They may be brought in by scire facias. (1 R. S. 387, § 3.) So in partition, where defendants die pending suit. (Id. § 7.) Judgment, too, may be entered on verdict, notwithstanding the death of either party, within two terms after such verdict is rendered. (Id. § 4. 17 Car. 2, ch. 8, cited inside in connection with Smith v. Irish, 1 Mod. 5, Leach's ed.) These provisions have no application in terms; and none of them hRye ever, that I find, been extended so as to take in any real action which is out of their letter. .

Motion denied,

(a)

Decided at Oct. term, 1836.