Opinion
March Term, 1898.
James E. Duross, for the appellant.
William J. Kelly, for the respondent.
This action was commenced in 1886 to recover damages for the death of the plaintiff's testator, which was alleged to have been caused by the negligence of the defendant. Issue was joined in June, 1886. The action was noticed for trial in May, 1887, and was reached for trial in May, 1888, when it was marked "reserved generally." No further proceedings were taken until the service of the motion papers on this application in October, 1897. The plaintiff, who was the executrix of the deceased, died on the 2d of July, 1894, and on the 15th of October, 1897, letters of administration, with the will annexed, were issued to the appellant. A motion was thereupon made in December, 1897, to revive the action and continue the same in the name of such administrator with the will annexed, which motion was denied, apparently upon the ground of laches in making it. It would seem that the case of Holsman v. St. John ( 90 N.Y. 461) holds that laches was no answer to such a motion; that such a rule works no injury to the adverse party, for, under section 761 of the present Code, the court may, upon the application of the living party, prescribe a time, not less than six months and not more than a year, wherein the representative of the deceased party must be substituted, or in default it may direct that the action abate; and that, therefore, the defendant had it in its power to compel the revivor of the action and a trial of the same, in default of which the action would abate.
In view of this authority it would seem that the order of the court below was wrong and should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
RUMSEY and McLAUGHLIN, JJ., concurred; INGRAHAM, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.