Lyons v. Third Avenue Railroad — 30 N.Y. Super. Ct. 605

Majority

p. 605

Lyons vs. The Third Avenue Railroad Company.

Headnote

Section 121 of the Code, which provides that “after a verdict shall he rendered! in any action for a wrong, such action shall not abate by the death of any party,” covers the case of a verdict for the plaintiff in an action to recover damages for injuries sustained through the negligence of the defendant’s, servants. Hence, it being unnecessary for the protection of the plaintiff’ that judgment should be entered, although his health be precarious, an . order staying his proceedings will not be so modified as to permit Mm to enter judgment.

(Before Jones, J., at Special Term,

December, 1867.)

This is an application so to modify an order staying- the plaintiff’s proceedings as to permit the plaintiff to enter judgment.

The action has been tried, and a verdict rendered in favor of the plaintiff. The defendant, desiring to move at a special term for a new trial, has from time to time obtained orders staying the plaintiff’s proceedings, the last of which is the one for the modification whereof this' application is made. A case has been prepared and served,, and amendments thereto served, and notice of settlement, given.

The modification is asked for on two grounds, 1st. The defendant is only seeking for delay. 2d. That the plaintiff's health is very precarious, and if he should die before judgment entered, the action would abate.

The first ground was not seriously pressed, and indeed cannot be maintained. The second ground is covered by ■that portion of section 121 of the Code, which provides:

4‘After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party/’ &e.

This action was brought to recover damages for injuries

p. 606

sustained by the plaintiff through the negligence of the defendant’s servants in starting one of their cars while the plaintiff was in the act of getting off'.

The section above referred to covers this cause of • action,'and of course it is unnecessary for the protection of the plaintiff that judgment should be entered; while, on the other hand, under, the practice of this court, if judgment is entered, it will be a bar to the defendant’s motion for a new trial.

Motion denied, without costs.