Holsman v. St. John

16 Jones & S. 306

• Court: The Superior Court of New York City
• Decided: June 19, 1882
• Status: Published

Opinion

By the Court.—Freedman, J.

This action came on for trial in March, 1861, and the trial ended with the withdrawal of a juror at plaintiff’s request. Since that time both parties to the action died—the plaintiff on December 22, 1864, and the defendant on July 22, 1879. Up to the time of defendant’s death no further step had been taken in the action by the plaintiff or his representatives. On October 31, 1881, an order was obtained from one of the judges of this court requiring the executors of the deceased defendant to show cause why the action should not be continued in the name of the administrator of the deceased plaintiff. Upon the hearing the motion was denied. Indeed I do not see how it could have been granted. Aside from the objection founded upon the lapse of nearly seventeen years since the plaintiff’s death, the death of both parties to the action was a bar to the motion. The court had no longer any jurisdiction in the premises. The provisions of the Code directing a continuance of the action by or against the representative of a party to the action who died since the commencement of the action (§§ 755-760), do not include a case in which all the parties to the action are dead at the time of the motion ; and by the common law the action abated.

The order should be affirmed, with costs.

Sedgwick, Ch. J., and Arnoux, J., concurred.