Lyon v. Park

Sedgwick, Ch. J. The modes in which a court can give to a party the benefit of section 755 are only those provided by the succeeding sections. Coit v. Campbell, 82 N. Y. 509, determinines that when one of two defendants dies as Park in this case, the action cannot be continued against his representatives under the provisions of section 757. If, which is not affirmed, any other section applies as to Park, it is section 758, in its last sentence. By that the matter is left to the discretion of the court acting upon special circumstances. The laches have been such that the representatives of Park have lost those ordinary means of investigation and defense that they would have had if an earlier application had been made. Even if it were the misfortune of the plaintiff that he has not been able before this time to procure security for costs, the effect of the lapse of time would be injurious to defendant’s defense. The motion is denied as to Park’s representatives. The representatives of Baxter have not been brought before the court on this motion, and indeed there are no representatives that could be competently sued in the courts of this state. The motion as to Baxter must be dismissed. Per Curiam. The order should be affirmed with costs on the opinion of the learned chief judge at special term. Order affirmed.