58 A.D. 247 | N.Y. App. Div. | 1901
This action was commenced in the year 1889, and is brought to recover upon four promissory notes dated May 19, 1882. The
This application seems to have been made under section 757 of the Code. It is there provided that “ in case of the death of a sole plaintiff or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.” The moving parties, however, did not come within the provisions of this section, for this applies only where the personal representatives of the deceased party or his successors in interest make the application, his successors in interest evidently being those succeeding to his right of action, where the deceased party sues in a representative capacity as trustee, executor, receiver, or in a capacity of a like character. Where there has been a transfer of interest, the right to substitute the transferee is based upon section 756 of ^the Code, which provides that in case of a transfer of interest the action may he continued by or against the original party, unless the court directs the person to whom the interest is transferred, or npon whom the liability is devolved, to be substituted in the action or joined with the original party as the case requires. In a case
But, assuming that the court could revive this action under section 757 of the Code, we think the learned judge was justified in denying the motion upon the ground of laches. There seems to have been a conflict between Holsman v. St. John (90 N. Y. 461) and Mason v. Sanford (137 id. 497). In the case of Pringle v. Long Island R. R. Co. (27 App. Div. 144) we applied the case of Hólsman v. St. John, granted the motion upon the ground that laches was no answer to such a motion, and certified the question to the Court of Appeals as follows: “ Is laches on the part of the plaintiff an answer to a motion for a revivor in an action for damages brought against a defendant by reason of alleged negligence?” The Court of Appeals,- after reviewing all of the cases, reaffirmed the decision in Mason v. Sanford, and answered that question in the affirmative, thus holding that laches on the part of the plaintiff is an answer to a motion for a revivor in an action for damages (Pringle v. Long Island R. R. Co., 157 N. Y. 100), and this question must now be considered settled by that decision. The laches in this case was so great that we think the court below was bound to deny the motion The only excuse offered by the applicants for the delay is the fact that they considered the defendants insolvent and have now just been informed that they have become solvent; but we do not think that this would justify the delay. A new trial was ordered in September, 1890. It is alleged that prior to the reversal of the judgment it was assigned; but no notice of that assignment seems to have-been given to the defendants, and in the following year the plaintiff died. No personal representative of the plaintiff was appointed, and nothing was done for over ten years which indicated an intention to continue the action or retry the case. Such a delay was practically an abandonment of the right to enforce this claim against the defendants, and as the plaintiff was dead and no personal representatives were appointed, the defendants were justified in assuming that the claim against them was abandoned.
Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, J"J., concurred.
Order affirmed, with ten dollars costs and disbursements.