Ryghtmyre v. Durham
12 Wend. 245
N.Y. Sup. Ct.
1834
Check Treatment

By the Court,

Sutherland, J.

The rule of September was according to the established practice of the court, which is correctly stated, and the reasons for'it, in 2 Dunlap’s Pr. 746, and 2 Tidd, 965: the party shall not be prejudiced by the delay of the court in giving judgment, if it can be avoided. The provisions of the statute, 2 R. S. 386, § 1, 2, 3, 4, do not affect this question. They refer to cases where the judgment has not been delayed by the court. In such cases, if one defendant dies, even; before verdict, the action shall not abates *246but shall proceed against the ■ survivor; but where the plain-0btains a verdict against two defendants, thus establishing his cause of action, and one of them dies while the cause 's sw^ iM^zce’ an^ he is thus stayed from perfecting his judgment, there is no reason why he should be confined to a judgment against the survivor, instead of both defendants. The motion to amend the rule giving judgment in the case was regular enough; it might have been ex parte.

Motion denied.