| N.Y. Sup. Ct. | Jul 1, 1852
The objection that there was no necessity for this motion, so far as the pending appeal was concerned, was well founded. The case is analagous to the writ of error at common law, where, if error had not been assigned, the writ abated by the death of the plaintiff in error,- but if the death happened after error assigned, the cause proceeded. In such case, the court of review directed judgment to be entered upon its decision, as of a day anterior to the death of the party. So in this very case, since this motion was made, the appeal has been argued at a general term of this court, and the judgment affirmed. The court directed the judgment upon such affirmance to be entered, as of a day previous to the death of the defendant.
But it may be that the personal representatives may wish to appeal from The decision at the general term. How can they do this, without first becoming parties to the action! The 325th section of the Code declares that any party aggrieved may appeal, &c. I will not say that this provision is not broad enough to authorize an appeal by the personal representatives without their first being made parties to the suit. But it is certainly more orderly for such parties, before appealing, to have an order, under the 121st section, allowing the action to be continued in their name. I think the application is proper, and the motion should be granted.