
    Jackson Wing vs. John M. Ketcham.
    An administrator of a deceased Plaintiff, in an action of assumpsit, may have leave to continue the action, under section 101 of the code, if he shows a cause of action which mrvives, notwithstanding it appears by the Defendant’s affidavits that the original Plaintiff in his life time, had assigned the demand before the commencement of the suit. The objection of the Defendant goes to the foundation of the action, and the court cannot try the merits of a cause upon affidavits.
    
      Dutchess Special Term,
    
    
      December, 1848.
    Mr. J. Emott, Jr., upon an affidavit, showing the death of the Plaintiff, in an action of assumpsit, moved for leave to continue the action by the administrator, under section 101 of the code.
    Mr. C. W. Swift, for Defendant, read affidavits in opposition, showing that the original Plaintiff had assigned the demand before the commencement of the action.
   Barculo, Justice.

The facts contained in the opposing affidavits go to the foundation of the action; but are not proper to be considered on this motion. The court, in this stage of the cause, must be governed by the pleadings. If they show a cause of- action which survives, the representative must be permitted to continue the action. The merits of the action cannot be tried upon affidavits. The motion is, therefore, granted, with leave to Defendant to amend his answer by setting up the same facts.  