Lyons v. Third Avenue Railroad

7 Rob. 605

• Court: The Superior Court of New York City
• Decided: December 15, 1867
• Status: Published

Opinion

Jones, J.

The modification is asked for on two grounds, 1st. The defendant is only seeking for delay. 2d. That the plaintiff's health is very precarious, and if he should die before judgment entered, the action would abate.

The first ground was not seriously pressed, and indeed cannot be maintained. The second ground is covered by ■that portion of section 121 of the Code, which provides:

4‘After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party/’ &e.

This action was brought to recover damages for injuries sustained by the plaintiff through the negligence of the defendant’s servants in starting one of their cars while the plaintiff was in the act of getting off'.

The section above referred to covers this cause of • action,'and of course it is unnecessary for the protection of the plaintiff that judgment should be entered; while, on the other hand, under, the practice of this court, if judgment is entered, it will be a bar to the defendant’s motion for a new trial.

Motion denied, without costs.