Fayerweather v. Smith

3 How. Pr. 98

• Court: New York Supreme Court
• Decided: September 15, 1847
• Status: Published

Opinion

Harris, Justice.

The application to revive the suit must of course be granted, and the Plaintiff is to be permitted, if he deems it necessary, to amend his bill. The Defendants are to have forty days after service of a copy of the order to revive, or in case the Plaintiff elects to amend, after service of a copy of the amended bill, to put in their answer.

It is a general rule that where there is a total abatement of a suit, as by the death of a sole Plaintiff, the cause is completely suspended, and no proceedings can be had in it until it has been revived. Yet, although the suit is abated, the court have in some cases entertained applications after the preliminary steps to revive have been taken, and I see no objection to allowing a conditional notice of a motion to be given as in this case. I think therefore'the order to revive may also provide for a reference to A. Gr. Johnson, Esq., with the usual powers to appoint a receiver of the partnership property and effects, upon this condition however, that within ten days from the date of the order, the Plaintiff execute and file with the clerk, a bond to the Defendants with one sufficient surety in the penalty of $500, conditioned as provided by the 21st rule. The injunction having been obtained without the security contemplated by the rule referred to, this condition must now be imposed upon the Plaintiff. In case he should omit to give such bond the Defendants are to be at liberty to move to dissolve the injunction.