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 These sections take the place of portions of section 121 of the Code of Procedure, which, as originally enacted, provided that no action should abate by the death of a party, and that "the court must, upon a supplementary summons and complaint, or in its discretion, upon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 (53 N.Y. 1), which was an action in equity, it was held that the right of the representatives of a deceased party to continue an action pending at the time of his death is not absolute, but rests in the legal discretion of the court; that leave to continue the action may be granted or refused according to the particular circumstances of each
case; that a long delay in making the application, unexcused, constitutes laches and a valid reason for refusing the relief asked for; that in such cases the equitable rule which requires reasonable diligence as well as good faith to put the court in motion, prevails, and that the court will not aid the party who has slept upon his rights in the enforcement of stale demands.
In Evans v. Cleveland (72 N.Y. 486), where the effort to continue was by supplemental complaint, the court cited Beach
v. Reynolds, and held that no mere lapse of time would absolutely defeat an application for the continuance of an action at law in the name of the representative of a deceased party, and that if the delay has been unreasonable, or in any way damaging to the defendant, the application may be denied.
In Coit v. Campbell (82 N.Y. 509), which arose upon a motion to revive an action in equity, it was held, in substance, that the word must, as used in section 757, is imperative only so far as to require that where the right of continuance exists it must be granted on motion, without putting the party to a supplemental pleading, and that the courts still have a legal discretion to refuse an application in an equity case where there has been laches.
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 (90 N.Y. 461), which holds that an application for a continuance must now be made by motion; that upon proper affidavits showing the facts, the court must grant the order, and that no mere lapse of time can defeat the application.
When the question was next presented, however, in Lyon v.Park (111 N.Y. 350) it was held that as an application to the court is necessary to authorize the revival or continuance of an action, the court may, on the ground of inexcusable laches, and where otherwise irreparable injury will be suffered by the opposite party, deny the application, because the right to the continuance is not of so absolute a nature as to preclude the court, in the exercise of a legal discretion, from denying it. The case of Holsman v. St. John (supra), although cited by
counsel, was not mentioned by the court in its opinion. Coit v.Campbell (supra), and Evans v. Cleveland (supra) were reviewed, and the latter expressly relied upon.
The last utterance of the court upon the subject was in Mason
v. Sanford (137 N.Y. 497), which was a motion for substitution, and the following rule was laid down: "The rule as to the revival of actions by the substitution of the representative of a deceased party in this state is as follows: In legal actions there is no mere time limitation, but the motion to revive may be denied for laches in making the motion. In equity actions there is a time limitation of ten years; but in such actions, on account of prejudicial laches, the court may refuse the revivor within the period of limitation," citing Evans v. Cleveland,Coit v. Campbell, and Lyon v. Park. Holsman v. St. John
does not appear to have been cited, and was not mentioned by the court.
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, 148 N.Y. 507.) The ordinary presumption, in support of the order appealed from, would be that the court decided the question of fact in favor of the prevailing party. This appeal, however, is certified to us, and our jurisdiction to review depends upon the order of certification, which expressly refers to the opinion of the Appellate Division rendered in deciding the appeal from the Special Term. Under these circumstances, we think the opinion becomes a part of the record before us, and, hence, it appears that the action of the court was based upon the case of Holsman v. St. John, and that the court did not consider the question of fact presented by the conflicting affidavits read upon the motion. The defendant, therefore, although entitled to a review of that question by the Appellate Division, has not yet had the benefit of its consideration by that learned court.
We, therefore, reverse the order appealed from, answer the question certified in the affirmative and remit the case to the Appellate Division for further consideration, with costs of this appeal to the defendant to abide the event.
All concur.
Order reversed, etc.