Dyckman v. Allen — 2 How. Pr. 17

Majority

p. 17

Rebecca Dyckman et al. agt. Stephen Allen et al.

Headnote

Where, in an action for trespass on lands by several plaintiffs, and during the pendency of the suit, one of the plaintiffs dies, the suit abates: it does not survive to the co-plaintiffs.

December Term, 1845.

Motion by defendants for judgment as in case of nonsuit. The defendants moved on a stipulation given by plaintiff 23d May, 1845, to try, and an affidavit showjng that subsequent thereto a circuit was held at which the cause was not noticed for trial by plaintiffs, &c. The plaintiffs showed that this was an action for trespass on lands claimed by plaintiffs; that Oathalina B. Dyckman, one of the plaintiffs, died on the 22d February, 1845, and that no suggestion.of her death had been made.

Ward & Lockwood, defendants’ attorneys.

W. N. DYCKMAN, plaintiffs' attorney.

Motion denied without costs to either party, on the *ground that the suit abated by the death of 0. B. Dyckman on the 2 2d February, 1845 ; it being an action of trespass on lands, the cause of action did not survive to her co-plaintiffs. (2 R. S. 386, § 1.)

Another cause between the same plaintiffs and Amos Bixby, for a like motion, was decided the same.