Markell v. Nester

HARDIN, P. J. Section 757 of the Code of Civil Procedure provides as follows: “In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest.” An inspection of the complaint shows that the cause of action stated is one which survives. It is provided by section 761 of the Code of Civil Procedure that, after the death of the plaintiff, the court may “in its discretion, upon notice to such persons as it directs, and upon the application of the adverse party, or of a person whose interest is affected, direct that the action abate, unless it is continued by the proper parties, within a time specified in the order, not less than six months, nor more than one year, after the granting thereof.” The defendant did not avail himself of the provisions of this section. From the 17th of August, 1892, until the 23d of January, 1895,—27 months and 14 days,—it was within the power of the defendant to have noticed the reference, and compelled a trial of the issues or a dismisal of the complaint. The administratrix moved promptly after her appointment for a substitution. She was guilty of no laches. Upon the papers presented at the special term, a case was not made requiring the denial of the motion for substitution. We are satisfied with the direction the discretion of the special term took. Lyon v. Park, 111 N. Y. 357, 18 N. E. 863; Mason v. Sanford, 137 N. Y. 500, 33 N. E. 546. In the case just cited, it wras said: “The rule as to the revival of actions by the substitution of the representative of a decease;! party in this state is as follows: In legal actions there is no mere time limitations, but the motion to revive may be denied for laches in making the motion.” In Wright v. Chase, 77 Hun, 90, 28 N. Y. Supp. 310, the county court had exercised its discretion, and, on an appeal from an order refusing to revive the action, it was said that the discretion of the county court could not be reviewed. In Holsman v. St. John, 90 N. Y. 461, it was held that the merits of a case for the defense should not be determined on a motion to revive an action. [854] Laches ought not to be imputed to the administratrix until her appointment. Barnes v. City of Brooklyn, 22 App. Div. 520, 48 N. Y. Supp. 36. As has been stated, she was appointed on the 25th day of January, 1898, and her affidavit used upon this motion was made two days thereafter, on the 27th of January, 1898, and the notice of motion bears date the 31st of January, 1898. We think the order made at special term should be sustained. Order affirmed, with $10 costs and disbursements. All concur.