Clute v. Emmerich — 19 N.Y. St. Rep. 710

Majority

p. 710

In the Matter of Thomas J. Clute to Continue Action Isabella B. Clute v. Adam Emmerich.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Abatement and revival—Death of pabty to action—When action-must BE BEVIVED.

Where a plaintiff in an action has died, the proceedings of the plaintiff cannot be stayed for the non-payment' of costs of an order made previous to the death of the plaintiff until the action has been revived, so that there is actually a plaintiff of record.

2. Summary decision of issues—Main issues in an action cannot be decided upon motion.

Upon an application for an order reviving an action and substituting the petitioner in place of a deceased party, questions involving those at issue in the action cannot be passed upon.

Appeal from order reviving action, etc.,, and substituting the petitioner in the place of Isabella B. Clute, deceased.

Gratz Nathan, for app’lt; T. J. Clute, petitioner in person.

There seems to have been no valid objection suggested to the order appealed from. The question as to whether the' deeds under which Mrs. Clute claimed were illegal and void by virtue of the statutes in. force prohibiting the conveyance of land during the pendency of an ejectment suit should not be determined upon a summary application such as this, neither should' the claim that the alleged cause of action for damages was void. Those are questions which are the subject matter of defense in an action when it is once revived.

The objection that the failure to pay the costs of a prior order prevented the making of this motion, does not seem to be well taken.

It may have stayed all the plaintiff’s proceedings, but they seem to have been stayed by a power higher than the court. It was necessary that the case should be revived in order that there might be some person who could pay the costs and continue the action. It was not until the_ action had been actually revived that there was any plaintiff, the plaintiff of record, whose proceedings could be stayed, being dead. - .

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.