
    REED a. BUTLER.
    
      New York Common Pleas ;
    
    
      General Term, July, 1860.
    Motion.—Abatement and Revival.
    If a party dies pending a motion, the decision of which will not finally determine the action, an order of revival must be had before the decision of such motion can be entered.
    The plaintiff moved to strike out the answer of defendant, and after the motion had been argued and submitted to the court, he died.
   By the Court.—Daly, J.

The plaintiff having died before the motion was decided, no further proceeding could be taken in the cause until a motion was made to revive the suit, and the order entered was a nullity. The death of the plaintiff after the motion was argued, was no reason for entering up the order as of the day of the argument. In courts of equity it is the practice, when a party dies after a cause has been submitted upon the final hearing, for the court, notwithstanding, to go on and render its decision, and direct a final decree to be entered up as of the day when the cause was submitted for decision. (Davis a. Davis, 9 Ves., 461 ; Campbell a. Mesier, 4 Johns. Ch., 342 ; Wood a. Keyes, 6 Paige, 478.) This practice was adopted directly from its analogy to the change which had been effected by statute in the practice of the common-law courts. At common law the action abated by the death of either party, but by the 17 of Car. II. (S. S. 1, 8), and 9 of W. III. (C. 11, 86), if it occurred after verdict or after interlocutory judgment, judgment might be entered up in the manner prescribed by the statute. There was a reason, however, for the course, which does not apply here. When a cause is submitted upon a final hearing, there is nothing more to be done by either party in the presentation or defence of it. The parties have been fully heard. The court being possessed of the whole case, may make its decree; and if, after that, something remains to be done, as to enforce the decree, there must be a revivor. But in this case the cause was not at issue. The motion was to strike out the defendant’s answer. It was heard before the plaintiff’s death, but as the decision of it would not put an end to the suit, no order could be entered striking out the answer until an order was first obtained, reviving the suit in the name of the proper party.  