
    CATHARINE HOLSMAN v. LOUISIANA ST. JOHN.
    
      Revival of action, both parties being dead.
    
    The provisions of the Code directing the continuance of an action by or against the representatives of a party to the action who has died since the commencement thereof, do not include a case where all the parties are dead at the time of the motion, and by the common law such action abates.
    Before Sedgwick, Ch. J., and Freedman and Arnoux, JJ.
    
      Decided June 19, 1882.
    Appeal from an order made at special term denying a motion on behalf of plaintiff’s administrator to revive the action.
    The facts appear in the opinion.
    
      Kissam & Embury, for appellant.
    
      F. G. McDonald, for respondent.
    This action has absolutely abated. By the common law, the death of either party before judgment abates an action. So that it is only by reason of and under the statutory provisions that an action can be revived. Section 757 of Code of Civil Procedure provided only for the revival of an action in the event of the death of “ a sole plaintiff or defendant.” There is no section of the Code, nor is there any statute providing for the revival of an action in the event of the death of botJi a sole plaintiff and defendant.
    In Coit v. Campbell (50 Hun, 50), the court held that section 757 was inapplicable, except in cases coming entirely within its language.
   By the Court.—Freedman, J.

This action came on for trial in March, 1861, and the trial ended with the withdrawal of a juror at plaintiff’s request. Since that time both parties to the action died—the plaintiff on December 22, 1864, and the defendant on July 22, 1879. Up to the time of defendant’s death no further step had been taken in the action by the plaintiff or his representatives. On October 31, 1881, an order was obtained from one of the judges of this court requiring the executors of the deceased defendant to show cause why the action should not be continued in the name of the administrator of the deceased plaintiff. Upon the hearing the motion was denied. Indeed I do not see how it could have been granted. Aside from the objection founded upon the lapse of nearly seventeen years since the plaintiff’s death, the death of both parties to the action was a bar to the motion. The court had no longer any jurisdiction in the premises. The provisions of the Code directing a continuance of the action by or against the representative of a party to the action who died since the commencement of the action (§§ 755-760), do not include a case in which all the parties to the action are dead at the time of the motion ; and by the common law the action abated.

The order should be affirmed, with costs.

Sedgwick, Ch. J., and Arnoux, J., concurred.  