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Michael J. Kennedy, as etc. v. Patrick H. Flynn and Others, Impleaded with Charles E. Teale and Joseph F. Coffey, as Administrators, etc.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The order cannot be sustained on either ground stated by the Special Term in its opinion, which is incorporated in the order by reference. The record does not disclose inexcusable laches exclusively attributable to the moving parties, their predecessor or the testator, or that irreparable injury will be suffered by the opposite parties.
Either, if not both, of these elements should be present when the court is besought to deny the application of the representatives of a deceased party to continue the prosecution of an action where the cause of action survives.
(Pringle v. Long Island R. R. Co., 157 N. Y. 100,103.) This action may properly be terminated by resort to usual procedures: (a) A judgment after a trial of the issues; (b) a judgment upon the dismissal of the complaint for neglect to proceed if the defendants show themselves entitled to this relief. Burr, Thomas, Rich, Stapleton and Putnam, JJ., concurred.