In re Bainbridge

| N.Y. Sup. Ct. | May 3, 1875

By the Court, Brady, J.

The application to revive the action commenced by Richard Bainbridge against Charles F. Livermore and others, on account of the death of the plaintiff, was not made for several years after the death occurred. The plaintiff was under a stay of proceedings, it is true, but that stay did not affect his representatives.

[First Department, General Term at New York, May 3, 1875.

The revival of the action was not a proceeding contemplated by, or embraced in, the stay. It cannot be regarded as a proceeding other than to prevent the abatement of the action. It is one of the modes provided for that purpose. The authorities are a unit on • the necessity of making the motion to revive within the year, under section 121. of the Code. (Allen v. Walter, 10 Abb., 379. Matter of Bornsdorff v. Lord, 41 Barb., 211. Coon v. Knapp, 13 How., 175. Gordon v. Sterling, Id., 405. Greene v. Bates, 7 How., 296.) The stay, for the reason assigned, did not prevent the running of the time. Indeed the running of the time against the personal representatives is a reason why the stay should not be regarded as affecting their remedy to have the action revived. The petitioners’ course is by supplemental complaint.

The order made must be reversed, therefore, with $10 costs and disbursements to abide event, ^(a)

Order reversed.

Davis, Brady and Daniels, Justices.]

(a) C. S., reported briefly, 4 Hun, 674.