157 N.Y. 100 | NY | 1898
The decision of this appeal depends upon the construction to be given to sections 757 and 761 of the Code of Civil Procedure. These sections take the place of portions of section 121 of the Code of Procedure, which, as originally enacted, provided that no action should abate by the death of a party, and that "the court must, upon a supplementary summons and complaint, or in its discretion, upon a motion, if made within one year after a decedent's death, in a proper case, allow or compel the action to be continued by or against his representative or successor in interest." In 1877 this section was amended by striking out the provision relating to a supplemental summons and complaint and directing that "the court must, upon a motion, allow or compel the action to be continued," etc. This is the language of section 757 of the Code of Civil Procedure as now in force. Section 761 provides that at any time after the death of the plaintiff, the court may, in its discretion, upon notice to such persons as it directs, and upon the application of the adverse party, or of the person whose interest is affected, direct that the action abate unless it is continued by the proper parties within a time specified in the order.
In Beach v. Reynolds (
In Evans v. Cleveland (
In Coit v. Campbell (
The next case in order of time to which our attention has been called is the one upon which the learned Appellate Division relied, Holsman v. St. John (
When the question was next presented, however, in Lyon v.Park (
The last utterance of the court upon the subject was in Mason
v. Sanford (
We feel bound to follow the latest decisions, which require us to answer the question certified in the affirmative.
The order of the Appellate Division does not state that that court decided the question of fact as to laches in favor of either party, and, according to the general rule, we could not look into the opinion for information upon the subject. (Koehler v. Hughes,
All concur.
Order reversed, etc.