Van Brocklin v. Van Brocklin — 17 A.D. 226

Majority

p. 226

Mathias Van Brocklin, Plaintiff, v . Eli Van Brocklin and Others, Defendants. John M. Carroll, as Surviving Executor, etc., of Davis L. Carroll, Deceased, Respondent; William S. Van Brocklin, as Executor, etc., of Mathias Van Brocklin, Deceased, Appellant.

Headnote

Revivor of an action— what laches will not defeat a motion therefor by the executor of a sole plaintiff, deceased—it is nota “ proceeding in the action," and consequently is not stayed by the non-payment of costs awarded against the deceased.

Delay on the part of an executor in making an application, under section 757 of the Code of Civil Procedure, foran order continuing in his name.an action for the foreclosure of a'mortgage in which his testator was the sole plaintiff, will not prevent the granting of the application — especially .in the absence of any proof on the part of the defendant that his- defense has been prejudiced thereby. The fact that his testator had omitted to pay costs awarded against him upon his application to reopen the case, is not a ground for denying the executor’s application to continue the action, as such application of the executor is not “a proceeding in the action” within the meaning of section 779:of the Code- of Civil Procedure, but is made in order that proceedings in the action may be taken. Semble, that if the executor, after his substitution as a party plaintiff, proposes to proceed, the defendant may then properly raise the objection that the proceedings of the executor should be stayed until the motion costs shall have been paid.

Appeal by William S. Van Brocklin, as executor, etc., of Mathias Van Brocklin, deceased, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the' clerk of the county of Montgomery on the 2d day of April, 1897,

p. 227

denying Ms motion to revive and continue the action in the name of William S. Van Brocklin, as executor, etc., of Mathias Van Brocklin, deceased, as plaintiff, in the place óf the said Mathias Van Brocklin, deceased.

Nisbet c& Hanson, for the appellant.

Fred. Linus Oarroll, for the respondent.

At the time of the decease of the sole plaintiff the action was pending. It was brought to foreclose a bond and mortgage. We are of the opinion that, under the provisions of section 757 of the Code of Civil Procedure, the executor of the deceased- was entitled to the order of continuance he applied for.

The delay in making the application should not have prevented the granting of this motion, especially in the - absence of any proof on the part of the defendant that his defense had been prejudiced thereby. (Greene v. Martine, 21 Hun, 136 ; 81 N. Y. 618 ; Holsman v. St. John, 90 id. 161.)

The fact that the deceased party had omitted to pay the costs awarded against him on his application to reopen the case was "not, under the provisions of section 779 of the Code of Civil Procedure, a ground for denying the application to continue the action. (Clute v. Emerich, 16 Civ. Proc. Rep. 123.)

The executor’s motion was not, we think, a p>roceeding m the action within the meaning of section 779 (supra). It was a motion to substitute a living for a deceased party, in order that proceedings i/n the action might be talten. If, after the substitution of the executor as a party plaintiff, he proposes to proceed, the defendant may properly raise the objection that lie should be stayed until the motion costs, if any are due, as to which we do not decide, áre paid.

We conclude that the order should be reversed and the motion granted, without prejudice to defendant’s right to take such action as he may be advised to, with ten dollars costs and disbursements of the appeal.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.