
    In Special Term —
    May 1855. —
    Spencer, J. presiding.
    MARGARET FLYNN, administratrix of JAMES FLYNN, vs. PHILIP HIRSCHAUER and JOHN B. McCLYMON.
    
    An action for a malicious prosecution does not abate by the death of the plaintiffs pending the action.
    This was an action brought, by James Flynn in his life time, to recover .damages for an alleged malicious prosecution. During the pendency of the action he died, and his widow, the present plaintiff, took out letters of administration upon his estate, and, suggesting his death, moved to be made.a party plaintiff, and to proceed with the action. It was contended by defendants, that the action abated by death of the plaintiff.
    R. D. & J. H. Handy, for the motion.
    Fox & French, contra.
   Spencer, J.

Section 899 of the Code provides, that “no action pending in any court, shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a Justice of the Peace for misconduct in office, which shall abate by the death of the defendant.” We do not think the action abates by the death of the plaintiff.

The motion will, therefore, be sustained.  