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Duffy v. Duffy

56 N.Y. Super. Ct. 593 24 Jones & S. 593 Court N.Y. Super. Ct. Decision date 1889-01-07 English

Delivered by The Court (Freedman, J., writing)

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p. 593
ANN DUFFY, Plaintiff v. MICHAEL DUFFY, Defendant and Respondent.

Headnote

Revivor—Motion for under § 757 Code Civil Procedure as amended by chapter 542, Laws of 1879, as to denial of on mere ground of delay.
Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
Decided January 7, 1889.
The action was one at law. The original plaintiff died more than ten years before a motion to revive was made. The motion was denied at Special Term on the ground that too much time had elapsed; and an order was entered denying the motion.
E. B. & C. P. Cowles, attorneys, and of counsel for moving parties, appellants.
John E. Parsons, attorney, and with II. B. Closson, of counsel for respondent.

held “ that under Coit v. Campbell, 82 N. Y. 509 , the motion was properly denied; but that the late case of Holsman v. St. John, 90 N. Y. 461 (which was decided without noticing Coit v. Campbell) was in apparent if not in real conflict with Coit v. Campbell; that the late case should be followed unless some distinction could be drawn between them; that the only distinction the court was able to draw is, that the first case was in equity and the latter an action-at-law; that it might still be a debatable question, notwithstanding Greene v. Martine, 21 Hun 136 , affirmed, 84 N. Y. 648 , whether a distinction between an action in equity and one at law should be maintained ; and that in view of the circumstances and the great importance of the question, it was in the interest of all parties to affirm the order so that the question

p. 594
involved might be squarely presented to the court of appeals, and put at rest by that court.”

The order was affirmed.

Sedgwick, Ch. J., and Ingraham, J., concurred.

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