Majority
p. 1091KENNEDY v. FLYNN et al. (Supreme Court, Appellate Division, Second Department. December 18, 1914.)
Headnote
Action by Michael J. Kennedy, as executor, etc., against Patrick H. Flynn and others.Order reversed, with $10 costs disbursements, granted, with $10 costs. The order cannot be sustained
p. 1092
on either ground stated by the Special Term in its opinion, which is incorporated in the order by reference. The record does not disclose inexcusable laches exclusively attributable to the moving parties, their predecessor, or the testator, or that irreparable injury will be suffered by the opposite parties. Either, if not both, of these elements should be present when the court is besought to deny the application of the representatives of a deceased party to continue the prosecution of an action where the cause of action survives. Pringle v. Long Island R. R. Co., 157 N. Y. 100 , 103, 51 N. E. 435 . This action may properly be terminated by resort to usual procedure: (a) A judgment after a trial of the issues; (b) a judgment upon the dismissal of the complaint for neglect to proceed, if the defendants show themselves entitled to this relief.
Cases cited
- Pringle v. Long Island Railroad 157 N. Y. 100 at 103, 51 p. 1092