6 Daly 70 | New York Court of Common Pleas | 1875
Andrew McGuire brought this action to recover damages for injuries sustained by him through the alleged negligence of defendant’s servants, he having been knocked down by a locomotive at the corner of 4th avenue and 49th street, in the city of Hew York. Issue was joined and the cause was called on for trial on the 9th day of June, 1874. The defendant applied for a postponement of the trial until the 18th day of June, 1874, which was granted upon their executing the following stipulation in open court: “ It is stipulated on the part of the defendant, as a condition of the post
The defendant received the benefit of the stipulation by obtaining the postponement they desired, and in justice and fair dealing they should be held to their agreement if it be lawful to enforce it against them. In civil actions, a party may -waive any of his rights or his remedies; for example, his right of appeal may be stipulated away (Townsend v. Masterson, 15 N. Y. 587), and so may his right to a jury trial. The citizen of one State sued in the State courts of another State, may waive his right in that particular case, to remove the cause into the courts of the Dnited States, although he cannot, by a general agreement beforehand, waive such a right in all cases where he may be subsequently sued (Home Ins. Co. v. Morse, 10 Alb. Law J. 377). It is contended, however, by defendant, that this is no waiver of a right or a remedy, but is a stipulation to change a rule of law. Without the stipulation in question, this action, being for personal injuries, and the complaint containing no averment of special damage to the estate of deceased, would .have abated on plaintiff’s death, and the continuance of the ac
That case and the one at- bar are alike in that a stipulation was made to change the rule of law for the particular case, for
But our concern is not with the cause of action so much as-with the operation of the rule of law and its assumed suspension by the stipulation. In the report of Garlington v. Glutton Call is reported as stating that “ the only way of giving effect, to the agreement is by refusing to let the party object the death. For, if he be permitted to allege it, or if process is required to revive it, either of them defeats the agreement, because you cannot obtain the process without suggesting the death, and that, ipso facto, abates the suit.” But the court plainly puts, its decision upon no such ground, nor could it, for the demurrer to the writ of error, and the setting up of the stipulation admitted the death.
It was necessary to continue the action in the name of the executor, since the cause could not proceed without a plaintiff the suggestion of plaintiff’s death for the purpose of obtaining-the order appealed from, is accompanied by the proof of and. filing the stipulation that the action shall not abate.
Upon the authorities I am in favor of affirming the order., with costs.
Charles P. Daly, Ch. J., and Loew, J., concurred.
Ordered accordingly.