Lyon v. Park — 55 N.Y. Super. Ct. 539

Majority

p. 539

JAMES E. LYON, Appellant v. TRENOR W. PARK, et al., Respondents.

Headnote

Abatement—Modes in which relief, under § 755 Code Civ. Proc. is granted —§§ 757, 758—Death of one of two defendants—Laches, when ground for denial of relief.

Before Freedman and Ingraham, JJ.

Decided December 12, 1887.

Appeal from, order.

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 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, and the motion was granted fixing the undertaking at $2,000. Order was entered and served accordingly June 11, 1878, requiring the bond to be filed within sixty days after service. The undertaking never was 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 was not served.

The following opinion was delivered at special term :

p. 540

Warren Higley, attorney, and Ewing & Southard and W. O. Campbell, of counsel, for appellant.

Jennings & Russell, attorneys, and Joseph H. Choate, Aldace F. Walker, and Frederic B. Jennings, of counsel, for respondents.

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. 509 , determinines 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 laches 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.

The order should be affirmed with costs on the opinion of the learned chief judge at special term.

Order affirmed.

Cases cited

Coit v. Campbell 82 N. Y. 509 N.Y. 1880-11-16 p. 540