Majority
p. 540James vs. Bennett. ALBANY, June, 1833.
Headnote
Parties succeeding to the title of a plaintiff in ejectment dying after issue, and before verdict, may be substituted, but it must be by scire facias, and not by motion.This is an action of ejectment. In October, 1833, the plaintiff stipulated to bring his cause to trial in March, 1833. In December, 1833, the plaintiff died, having by his last will and testament devised all his real estate to trustees. A motion was now made to substitute the trustees as plaintiffs in the action.
W. W. Frothingham, for the motion.
I. Williams, contra.
By the Court,
The statute says the action of ejectment shall not abate by the death of the plaintiff after issue, and before verdict or judgment, but the same proceedings may be had as in other actions, to substitute the names of those who may succeed to the title of the plaintiff thus dying; in which case the issue shall be tried as between the original parties. 3 R. S. 308, § 33. Other actions abate by the death of a sole plaintiff before interlocutory judgment or verdict; by this statute ejectment does not abate, and the parties succeeding to the title may be substituted, not by motion, however, but by proceedings usual in other actions, that is, by scire facias. The motion is denied, with costs, to be paid by the trustees,