Lyon v. Park — 12 N.Y. St. Rep. 69

Majority

p. 69

James E. Lyon, App’lt, v. Trenor W. Park, William Stewart and H. Henry Baxter, Resp’ts.

(New York Superior Court, General Term,

Filed December 9, 1887.)

Headnote

1. Abatement and revival—Code Crv. Pro.. § 755.

The modes in which a court can give to a party the benefit of Code Civil Procedure, § 755, are only those provided by the succeeding sections.

2. Same—When discretionary with court—Code Civ. Pro., § 758.

By Code Civil Procedure, § 758, the revival of an action is left to the discretion of the court acting upon special circumstances. Where there has been no action taken in the prosecution of a suit for eight years, during which time the two defendants served have died, the court is justified in refusing an application to revive the suit against the representatives of said defendants.

Appeal from order entered at special term denying plaintiff’s motion for leave to revive the cause against the estate of Park and Baxter and give security for costs. This motion was made by the plaintiff in August, 1886, for leave to continue the action against the estates of Park and Baxter, and also to be relieved from his default and failure to file a bond for costs as required by order of the court, made June 11, 1878, and that he be now permitted to comply with that order. The alleged cause of action (if any) arose in November, 1871, The action was commenced by the service of summons in June, 1877. The complaint was served in November, 1877, plaintiff’s time having been previously extended by order. Notice of motion for order requiring plaintiff to give security for costs was served March 12, returnable March 20, 1878. The hearing on this motion was adjourned at plaintiff’s request from time to time until June 4, 1878, when it was argued. The defendants claimed to be entitled to security in at least $6,000. The judge granted the motion, fixing the bond, however, at only $2,000, and order was entered accordingly June 11, 1878, requiring the bond to be filed within thirty days after service. The order was duly served the same day. The bond has never been filed. The defendant Park died December 13, 1882, and his administrator was appointed January 6, 1883. The defendant Baxter died February 17, 1884. The administration of his estate is in Vermont. The defendant Stewart, although the one chiefly complained of by the plaintiff, has never been served, and though the

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plaintiff has resided in the same place with him for the last eight years, and has been constantly threatening and abusing him in print and otherwise, has never been sued there or elsewhere.

This motion noticed July 22, 1886, returnable August 9, 1886, is absolutely the first and only step taken in the cause by the plaintiff since the entry of above order, June 11, 1878,. over eight years before, with the exception of a formal order substituting the plaintiff’s present attorney in place of the former attorney, entered July 19, 1886.

The defendants Park and Baxter, whose testimony from the very character of the suit would necessarily be the most important and vital testimony for the defense, as well as very many of the other most important witnesses for the defense have died during this long delay and since the entry of said order, and many of them since the abatment of the suit by the death of the defendant Park.

Jennings & Russell, for resp’ts; Ewing & Southard, for app’lt.

Order appealed from affirmed on opinion of Sedgwick, C. J., at special term.

The following is the special term opinion:

The modes in which a court can give to a party the benefit of section 755 are only those provided by the succeeding sections.

Coit v. Campbell ( 82 N. Y., 516 ), determines that when one of two defendants dies, as Park in this case, the action cannot be continued against his representatives under the provisions of section 757.

If, which is not affirmed, any other section applies as to Park, it is section 758, in its last sentence.

By that the matter is left to the discretion of the court acting upon special circumstances. The loches have been such that the representatives of Park have lost those ordinary means of investigation and defense that they would have had if an earlier application had been made.

Even if it were the misfortune of the plaintiff that he has not been able before this time to procure security for costs, the effect of the lapse of time would be injurious to defendant’s defense.

The motion is denied as to Park’s representatives.

The representatives of Baxter have not been brought before the court on this motion, and indeed there are no representatives that could be competently sued in the courts of this state.

The motion as to Baxter must be dismissed.