Mason v. Sandford — 45 N.Y. St. Rep. 762

Majority

p. 762

Thomas F. Mason, Rec’r, Resp’t, v. Samuel T. W. Sandford, Impl’d, Def't.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Abatement and bevivob—Laches.

A motion to revive an action will not be denied on the ground of loches where no injury has resulted or will result to the personal representative in consequence of the delay; no rights have been lost, and no evidence is not obtainable which could have been procured at the time of the party’s death.

Appeal by the executor of the defendant Sandford from order reviving action and continuing it against him.

Action brought by the receiver of the Widows & Orphans Benefit Life Insurance Company against the trustees of said company to compel them to account for property and assets alleged to have been diverted and misapplied by them. Defendant Sandford died in 1882. Thereafter the original plaintiff died, and this plaintiff was appointed receiver in his place and moved for revival in 1891.

P. H. Vernon, for app’lt; W. C. Trull, for resp’t.

The power of the court to grant this order has been settled by the court of appeals affirming the order of this

p. 763

court reviving the action as against the executor of another defendant. See Mason v. Morgan, 121 N. Y., 705 ; 31 St Rep., 996 .

The only question presented upon this appeal is whether the court below should have granted the application in the exercise -of its discretion, or denied the same in consequence of loches in making the motion. The rule as stated by the court of appeals in Lyon v. Park, 111 N. Y, 357 ; 19 St. Rep., 626 , is that “ as an application to the court is necessary to authorize its revival or -continuance, the court, we think, may on the ground of inexcusable loches or where otherwise irreparable injury will be suffered, deny the application.” ■

We think that the facts presented in this case show that the delay in making the application was not such unreasonable loches as would justify a denial thereof. It is not suggested that any injury has resulted or will result to the appellant in consequence •of the delay. Ho rights have been lost; no evidence is not now attainable that could have been procured at the time of the death of the appellant’s testator; and nothing appears to indicate that the appellant has been in any way injured by the failure to revive within a reasonable time after the death of the appellant’s testator.

We think, therefore, that the order was right and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.