Hyperlawhypertext legal database Kirke La Shelle Co. v. Armstrong 157 N.Y.S. 909

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Kirke La Shelle Co. v. Armstrong

157 N.Y.S. 909 Court N.Y. App. Div. Decision date 1916-03-17 English

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p. 909
KIRKE LA SHELLE CO. v. ARMSTRONG.
(Supreme Court, Appellate Division, First Department.
March 17, 1916.)

Headnote

Abatement and Revival <§=>76—Order or Substitution.
Where defendant’s motion for new trial on exceptions was ordered heard in the first instance in the Appellate Division and before hearing defendant died, the motion cannot be decided until an order of substitution has been entered and defendant is properly represented.
[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 483-487; Dec. Dig. <§=>76.]
Action by the Kirke La Shelle Company against Paul Armstrong. There was a verdict for plaintiff, and defendant moved for new trial upon exceptions, which were ordered to be heard in the first instance in the Appellate Division. Motion passed until revivor; defendant having died before hearing.
Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, SMITH, and PAGE, JJ.
Phelan Beale, of New York City, for the motion.
Leavitt J. Hunt, of New York City, opposed.

It appearing by suggestion to the court that the defendant has died and that no order of substitution has been entered, this court cannot decide the motion, notwithstanding the exceptions, until the defendant is properly represented.