James v. Bennett

10 Wend. 540

Opinion

By the Court,

Savage, Ch. J.

The statute says the action of ejectment shall not abate by the death of the plaintiff after issue, and before verdict or judgment, but the same proceedings may be had as in other actions, to substitute the names of those who may succeed to the title of the plaintiff thus dying; in which case the issue shall be tried as between the original parties. 3 R. S. 308, § 33. Other actions abate by the death of a sole plaintiff before interlocutory judgment or verdict; by this statute ejectment does not abate, and the parties succeeding to the title may be substituted, not by motion, however, but by proceedings usual in other actions, that is, by scire facias. The motion is denied, with costs, to be paid by the trustees,