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2 N.Y.L. Jist 1 (1937-1938)

handle is hein.journals/newrojis2 and id is 1 raw text is: NrW Vork iiaw 3inta A Compendium of Current Decisions Reported in the New York Law Journal VOL. 2. NO. 1 $5.00 per annum Issued weekly by Lexapedia Publishing Co., Inc., 45 W. 45th St., New York, N. Y. 0 1937, Lexapedia Publishing Co., Inc. September 30, 1937 Entered as second-class matter, May 12, 1937. at the Post Office at New York, N. Y. under the Act of March 3, 1879 *KEY TO REFERENCE: Title-court-Justice-date decision published in New York Law Journal-page-column ABATEMENT Although a cause of action may abate by reason of plaintiff's death, the action itself does not abate and subsequent proceedings are the same as in a case where the cause of action survives ; (CPA 89). Hence, where judgment for plaintiff in action for loss of wife's services was reversed by the Appellate Div- ision and his complaint dismissed and, between entry of the judgment and its reversal, the plaintiff died, held, his administrator is entitled to be substituted in his place for the purpose of prosecuting an appeal to the Court of Appeals (243 AD 684, aff'd 267 NY 592) since no question of a new trial is now pre- sented. However, where the judg- ment only is reversed on appeal, the representative of the deceased plain- tiff may not be substituted for the purpose of conducting a new trial (244 AD 431). (Note: Wife was injured in 1930) Bresseler-NYRT[SupK Brower9-17-37703|5 AFFIDAVIT OF SERVICE Where order to show cause per- mitted its service by mail, an affida- vit of service thereof is defective where it alleges merely enclosing a true and conformed copy in a properly wrapped, sealed and post- paid wrapper addressed to the per- sons named in petition, since the affidavit says nothing about mailing. The rules require proof of a deposit in a post office or post office box regularly maintained by the U.S. gov't. (RCP 53 sub 8, 20). More- over, even if the affidavit contained a statement of mailing it would still fail to fulfill the requirement of the rules that there must be a deposit in a post office or post office box regularly maintained by the U.S. gov't (113 Misc. 444). Omnibus affi- davit of service is disapproved and considered insufficient. The affidavit should specify individually the names of the persons who have been served by mail. Motion to strike from register the names of voters so served is therefore denied. M. of LombardiSupNIValente|9-16-37168711 ALIMONY Wife's remarriage does not affect her right to receive the alimony pro- vided by divorce decree and pay- ment must be continued until an order is made pursuant to CPA 1159, eliminating provisions for her sup- port (127 AD 740; 136 AD 513). Jones-KirtlandSupN Valente|9-18-37|71216 Since wife has ample funds to prosecute divorce action, motion for temporary alimony and counsel fee is denied; (225 AD 791). Sulnivan-SullivanlSupNIHofstadterl9-14-376623 Page 1