7 How. Pr. 296 | N.Y. Sup. Ct. | 1852
The time has gone by when the administratrix, of the plaintiff can move for an order continuing this suit in her name under section 121 of the Code. She may, however? revive or continue the suit on an application, and leave obtained, to file a supplemental complaint under- this section. The Code is entirely silent as to the practice to be pursued in such a case, when the suit has been suspended over a year after the death of the party, except that it must be continued on á supplemental complaint when the plaintiff applies to continue it after the year has gone by. I am of the opinion, however, that we must regard the former practice in chancery as furnishing the mode of proceeding in such a case. The rule as to parties now is very nearly the former chancery rule; and when the Code is silent I think the chancery practice may be safely followed. The defendant can not move to dismiss the complaint for want of prosecution pending this defect or suspension of the suit by the death of the plaintiff (1 Barb. Ch. Pr. 244, and cases there cited). I do not find