
    Benjamin’s Executors vs. Smith.
    Where there is a verdict for a defendant in an action for & false return, and the plaintiff applies for a new trial, which is granted, but pending the motion the plaintiff dies, the suit abates and can not be revived by scire facias by his executors, 
    
    Abatement of suit. The testator sued Smith, late sheriff of Chenango, for a fa Ise return. The defendant obtained two verdicts in his favor, both of which were set aside by this court (see 4 Wendell, 332, and 12 id. 404). Pending the motion to set aside the second verdict the testator died, and his executors now sue out a scire fticias to revive the suit. The defendant demurs.
    
    
      H. Vanderlyn, for the defendant.
    
      J. Clapp, for the plaintiff,
    insisted that as the cause of action survived, the case was within the equity of the statute allowing a judgment to be entered within two terms after verdict (2 R. S. 386, § 4). The manifest intention of which was-to declare that in such cases the suit should not abate. The object of the statute was to save the costs to the party [209] who had right; and although for some purposes a verdict set aside may be considered as no verdict, yet a case like the present is within the meaning of the statute.
    
      
      
         “ No action shall abate by the death, marriage or other disability of i party, or by the transfer of any interest therein, if the cause of action survive or continue.” Code, § 121.
    
   By the Court,

Cowen, J.

It is agreed that the cause of action did not die with Benjamin; and it is also agreed that at common law, it would have abated. But it is insisted that the statute (2 R. S. 386, §4). providing that notwithstanding the death of a party after verdict, judgment may be entered within two terms from the rendition of the verdict, extends to this case. Clearly, however, it does not reach the case in any sense. Here is no verdict. It has been annulled, and the cause ordered to a new' trial. Beside, the statute does not authorize a sci.fa. In a proper case, judgment is to be entered without.

Most clearly the suit abated, and judgment must go for the defendant  