Mayer v. Bruns — 73 N.Y. St. Rep. 513

Majority

p. 513

Alexander J. Mayer, App’lt, v. Philip C. Bruns, Resp’t.

(New York City Court, General Term,

Filed January 28, 1896.)

Headnote

Abatement and revivar—Substitution of administrator.

Under § 757 of the Code, the court need not, on the death of a defendant, substitute his administrator, where the complaint shows the action is barred by the statute of limitations and the answer sets up the statute.

Appeal from an order denying a motion to substitute as defendant the administrator of the original defendant, and that the action be continued against him.

GK Waterbury, for app’lt; Donald McLean, for resp’t,

The order appealed from must be affirmed, -with costs, for the reason stated in the opinion of the special term

p. 514

justice. Besides, it is undisputed that the motion was not made by the plaintiff’s, attorney of record.

All concur.

The following opinion was rendered at special term by Mr. Justice CONLAN:

“The complaint shows on its face that the action was not commenced within six years, and the answer pleads the statute of limitations. I see no reason for bringing in the administrator. Motion denied.”