New York Supreme Court, 1800

Jackson ex dem. Butler v. Ditz

New York Supreme Court · Decided April 15, 1800

1 Johns. Cas. 392

Counsel

Hoffman, (attorney general,) for the defendant,, Riggs, contra.

Opinion of the Court

Per Curiam.

The evidence of the death of Butler is sufficient, prima facie to put the burden of proof upon the plaintiff, to show that he is alive, and as he has not done so, we are of opinion, that the demises by Butler should be struck out of the declaration. Both the time and manner of the application are proper.(b)

Rule granted.

The defendant may at any time move to have the demise of a lessor, who died before the commencement of the action struck out of the declaration *466without costs. Jackson v. Reynolds, 1 Caines’ R. 20. Jackson v. Banckroft, 3 Johns. R. 259. Elliott v. Bohannon, 5 Monroe, 23. Doe ex. dem. Manston v. Butler, 3 Weiid. 153, per Sutherland, J. See v. Greenlee, 6 Munf. R. 303. But see Kinney v. Beverley, 1 Hen. & Munf. 531. Tillinghast’s Adams on Ejectment, Hogan’s ed. 320.

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