Benjamin's Executors v. Smith

Decided May 15, 1837

New York Supreme Court · decided 1837-05-15

Abatement of suit. The testator sued Smith, late sheriff of Chenango, for a fa Ise return. The defendant obtained two verdicts in his favor, both of which were set aside by this court (see 4 Wendell, 332, and 12 id. 404). Pending the motion to set aside the second verdict the testator died, and his executors now sue out a scire fticias to revive the suit.

Cited by 4 later decisions — most recently May 1933

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1837-05-15

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¶1By the Court,

Cowen, J.

¶2It is agreed that the cause of action did not die with Benjamin; and it is also agreed that at common law, it would have abated. But it is insisted that the statute (2 R. S. 386, §4). providing that notwithstanding the death of a party after verdict, judgment may be entered within two terms from the rendition of the verdict, extends to this case. Clearly, however, it does not reach the case in any sense. Here is no verdict. It has been annulled, and the cause ordered to a new' trial. Beside, the statute does not authorize a sci.fa. In a proper case, judgment is to be entered without.

¶3Most clearly the suit abated, and judgment must go for the defendant