Freeman v. Frank

10 Abb. Pr. 370

• Court: New York Supreme Court
• Decided: February 15, 1860
• Status: Published

Opinion

Balcom, J.

—The only authority for demurring to answers is contained in section 153 of the Code, and that is in these words: “ The plaintiff may, in all cases, demur to an answer containing new matter, where, upon its face, it does not constitute a counterclaim or defence ; and the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims.”

.The Revised Statutes contain this section: “A person sentenced to imprisonment in a state-prison for life, shall thereafter be deemed civilly dead.” (2 Rev. Stat., 701, § 20.) If the defendant was sentenced to the state-prison at Auburn for'life, as alleged in the answer, there can be no doubt but that such sentence abated the action. For causes of action for assault and battery and false imprisonment do not survive, they die with the person. (Gr. Pr., 2d ed., 93.)

When the cause of action does not survive, no step can be taken in the action after the plaintiff or defendant dies. '! If the living party thereafter proceeds in it, the executor or administrator of the deceased party can have the proceedings set aside on motion.

The rights and liabilities of a person civilly dead are as entirely gone -as though he were actually' dead; and his estate may»be administered upon in like manner as if his-body were a corpse. A deceased person, whether he died a "civil or natural death, cannot have an attorney. His executor or administrator represents him, and no other person can act or speak for him.

Does the new matter in ,the answer, demurred to, upon its face, constitute a defence to the action ? The fact that the defendant has answered, though by attorney, shows he is neither civilly nor physically dead. It is conclusive that he is living, and not under any disability that prevents him defending the action. The defendant, by answering, proves he is alive; and when he avers in his answer that he is dead, he is not to be believed. The answer, therefore, contains two contradictory averments, one of which in judgment of law is a .fiction. If the defendant was dead, he could not answer. Hence the averment that he. is civilly dead must be deemed untrue. The demurrer only admits the allegations in the answer, when contradictory, which the law adjudges to be true. For this reason the demurrer does not admit that the defendant is civilly dead. It only admits he is living. The new matter in the answer, therefore, upon its face, does not constitute a defence to the action. The demurrer should be sustained; and the plaintiff is entitled to judgment thereon, with costs. But the defendant may answer over within twenty days, on payment of costs.