Ryghtmyre v. Durham , 12 Wend. 245 ( 1834 )

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 but 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.