Opinion
October Term, 1898.
F.J. Mather, for the appellants.
D.B. Ogden, for the respondent.
Unless the right here sought for the revival and continuance of the action is accorded under sections 755 and 757 of the Code of Civil Procedure, then on the grounds of laches, which are enumerated and considered in the court below, it should be denied. The appellants, however, contend that such right is absolute, and reference is made not only to the mandatory language of the Code provisions, but also to certain authorities, particularly to Holsman v. St. John ( 90 N.Y. 461) and Pringle v. Long Island R.R. Co. ( 27 App. Div. 144). These are undoubted authorities in favor of the appellants' contention. The case of Pringle v. Long Island R.R. Co. ( supra) merely followed the decision in Holsman v. St. John ( supra), in which the Court of Appeals said: "All applications to continue an action in case of the death of a party must be made by motion and upon proper affidavits showing the facts, and the court must grant the order. Even under the old Code, where the language was permissive, it was held by this court that in an action at law `no mere lapse of time would absolutely defeat an application for its continuance on a supplemental complaint in the name of a representative of a deceased party.' ( Evans v. Cleveland, 72 N.Y. 486.)"
In the Pringle Case ( supra) attention was not called to the three cases of Shipman v. Long Island R.R. Co. ( 11 App. Div. 49) ; Lyon v. Park ( 111 N.Y. 350) and Mason v. Sanford (137 id. 497). In the latter case (p. 500), upon a review of the authorities, it was said: "The rule as to the revival of actions by the substitution of the representative of a deceased party in this State is as follows: In legal actions there is no mere time limitation, but the motion to revive may be denied for laches in making the motion. In equity actions there is a time limitation of ten years; but in such actions, on account of prejudicial laches, the court may refuse the reviver within the period of limitation."
Although there thus appears to be a conflict of authorities, this court should follow the later decisions, not only because in point of time they are the later expressions of our Court of Appeals, but also because they seem to be founded upon stronger reasons and recognize the force of the decisions in our courts which uniformly support the discretionary power in determining whether or not relief should be accorded where there is laches.
As under the rule stated laches is a bar to the right to have an action revived, it follows for the reasons given by the learned judge in the opinion below, that the order appealed from should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.