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Austin v. Jackson, ex dem. Kimber

1 Wend. 27 Court N.Y. Sup. Ct. English

Delivered by Savage, C. J.

Contents

Majority

p. 27
Austin ads. Jackson, ex dem. Kimber & Chandler.

Headnote

In ejectment. the death of a lessor does not abate the suit. Such occurrence will however be received as an excuse for not proceeding to trial, and the plaintiff be permitted to stipulate anew.
Motion for judgment as in case of nonsuit for not proceeding to trial after stipulation. The excuse offered is, that Kimber, one of the lessors of the plaintiff, for whose benefit the suit was commenced, died after the stipulation, and previous to the circuit at which the cause ought to have been tried. Chandler, the other lessor, is merely a nominal lessor.
C. Monell, for defendant.
Wisner, for plaintiff.

By the Court,

The death of the lessor of the plaintiff does not abate the suit. (Frier v. Jackson, 8 Johns. R. 495.) The excuse offered will be received so far as to permit a new stipulation on payment of costs; otherwise the motion must be granted.