Majority
p. 536(27 App. Div. 144.) PRINGLE v. LONG ISLAND R. CO. (Supreme Court, Appellate Division, First Department. March 25, 1898.) Argued before VAN BRUNT, P. J., and RUMSEY, McLAUCHLIN, and INGRAHAM, JJ.
Headnote
Revival of Action—Laches—Waiver.In an action to recover damages for the death of plaintiff’s testator, issue was joined in 1886, and the action was reached for trial in 1888, and
' was marked “Reserved generally.” The plaintiff, who was executrix of the deceased, died in July, 1894, and letters of administration with the will annexed were issued to her successor in October, 1897. In December, 1897, a motion by the administrator to revive the action, and continue the same in his name, was denied on the ground of laches. Held, that laches was no answer to such a motion, for under Code Giv. Proc. § 761, the living party had it in its power to have compelled the revivor of the action and a trial, or, in default thereof, to have the action abated, and, not having availed itself of this right, it could not claim to have been injured by the delay.
Appeal from special term, New York county.
Action by Mary B. Pringle, as executrix, against the Long Island Railroad Company. James S. Biddell, as administrator of plaintiff, appealed from an order denying a motion to revive the action. Reversed. , '
James E. Duross, for appellant.
W. J. Kelly, for 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,'
p. 537
1887, and was readied 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 $10 costs and disbursements, and the motion granted, with $10 costs.
RUMSEY and McLAUGHLIN, JJ., concur. INGRAHAM, J., concurs in result.
Cases cited
- Holsman v. St. John 90 N. Y. 461 p. 537