Opinion
January Term, 1902.
Jacob F. Miller, for the appellants.
Edward M. Shepard, for the respondents.
It is evident that both parties require judicial aid to permanently adjust their rights, which seem almost hopelessly involved, and to clear up the titles to their respective parcels of land. Both parties concede that all efforts towards a voluntary settlement have been in vain. The opinion of the court at General Term, written by Justice DANIELS more than sixteen years ago, shows that there was no hope of compromising the controversy.
The order of revival brings all parties interested before the court, and this suit in equity seems best adopted to the rendition of justice and a complete determination of all matters in dispute. If revivor be not permitted, then the Statute of Limitations will doubtless have run against any action between the parties whose representatives are now enjoying this property and title will have been acquired by adverse possession entered upon pursuant to the partition agreement. Owing to the inequality of the value of the property as thus divided and now occupied by the respective parties and title to which is claimed by them, it is manifest that an injustice will be done if the court cannot retain jurisdiction and administer equity in this action. It does not appear that either party will be prejudiced by the revival and continuance of the action, and the moving papers show an intention to prosecute the action to final determination.
On receipt of his deeds from the original defendants in 1879, Morgan Jones had the right to be substituted or joined as a party defendant herein. (Code Civ. Proc. §§ 452, 756.) He then became the real party in interest and could have insisted upon the speedy prosecution of the suit. The plea of laches interposed by his representatives who are and have been enjoying more than their share of the copartnership property should not be received with favor.
Justice requires that the order should be sustained. The question is, can it be sustained under the law and practice applicable to the revival of suits in equity? The Code of Civil Procedure provides that the right of revivor or continuance of an action must be obtained by motion and it contains no limitation upon the time within which the motion must be made. (Code Civ. Proc. § 757.) This is, however, a substitute for the remedy by bill of revivor and is subject to the rules and practice applicable thereto and the right may be barred by laches and by the Statute of Limitations by analogy. ( Coit v. Campbell, 82 N.Y. 509; Lyon v. Park, 111 id. 350; Mason v. Sanford, 137 id. 497; Pringle v. L.I.R.R. Co., 157 id. 100; Crowley v. Murphy, 33 App. Div. 456; Hale v. Shannon, 58 id. 247.)
In actions at law no mere lapse of time will defeat the motion, but the application may be denied for laches. In equity there is a time limitation of ten years, that being the limitation on the right to bring the action originally; but in suits in equity the court may, on account of unnecessary and prejudicial laches, deny the motion even when made within ten years. ( Pringle v. L.I.R.R. Co., supra; Mason v. Sanford, supra.)
In the case at bar, however, the main issues have already been tried and the facts found upon which the court has decreed by interlocutory judgment that the plaintiff is entitled to an accounting for the purpose of carrying into effect the partition agreement. The decree for an accounting distinguishes this case from those cited. When, as here, there has been an interlocutory decree for an accounting, the ten-year Statute of Limitations does not bar revivor, and in such case the granting of the motion is discretionary, but it will be denied for gross laches or negligence. ( Hollingshead's Case, 1 P. Wms. 742, cited with seeming approval in Coit v. Campbell, supra; Alsop v. Bell, 24 Beav. 451; Curtis v. Sheffield, L.R. [20 Ch. Div.] 398; 18 Ency. Pl. Pr. 1106, 1107; Earl of Egremont v. Hamilton, 1 Ball B. 516; 2 Barb. Ch. Pr. 53; 2 Dan. Ch. Pl. Pr. [6th Am. ed.] 1522.)
In this case, as has been observed, no prejudice has been shown. The original parties who have died have been examined before the referee. It does not appear that their examination was not full and complete. Their testimony having been preserved, the substituted parties will have the benefit thereof. It is not shown that any voucher, book of account, record or other evidence has been lost to the appellants by the delay. Prejudice would more likely result from denial of revivor, for it is not apparent that this testimony would be as available in any other action or proceeding.
The various other litigations in which the parties engaged explain the suspension of activity on the reference herein. Upon the transfer by the defendant of his interest in the property to Morgan Jones, the latter became the real party in interest in the defense of the case. That he so considered it is shown by his answer in the ejectment suit wherein he pleaded the pendency of this action as a bar. The parties in interest and the court have regarded this action as pending; ten years have not elapsed since the death of the plaintiff or of Morgan Jones, the real defendant. If the order could not be sustained upon that ground alone, upon the theory that equity will disregard the form and look at the essence of things, these facts tend to justify the exercise of the court's discretion in granting the motion.
For these reasons the order should be affirmed, with ten dollars costs and disbursements.
PATTERSON, INGRAHAM and HATCH, JJ., concurred; VAN BRUNT, P.J., dissented.
Order affirmed, with ten dollars costs and disbursements.