Cornelius George Crowley and Ellen Daly, Appellants, v. Mary Murphy, Defendant; Margaret Wilkinson, Respondent

Cornelius George Crowley and Ellen Daly, Appellants, v. Mary Murphy, Defendant. Margaret Wilkinson, Respondent. Revivor against a decedent's representatives — the right, is not absolute — it may be denied for laches. No absolute right to revivé' and continue an action against an administratrix of a deceased party defendant, is given by sections 755 and 757 of the Code of Civil Procedure; and, where there is laches, the court may properly exercise its' discretionary power in determining whether or not relief should be accorded. Appeal by the plaintiffs, Cornelius George Crowley and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in. the office of the clerk of the county of Hew York on the Btli day of June, 1898, denying the plaintiffs’ motion that Margaret Wilkinson, individually. and as administratrix of Mary Murphy, deceased, be substituted as defendant, and that this cause be revived and continued against her as aforesaid in the place and stead of Mary Murphy, deceased. F. J. Mather, for the appellants. D. B. Ogden, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: Unless the right here sought for the revival and continuance of the action is accorded under sections 755 and 757 of the Code of Civil Procedure, then on the grounds of, laches, which are enumerated and considered in the court below, it should be denied. The appellants, however, contend that such right is absolute, and reference is made not only to the mandatory language of the Code provisions, but also to certain authorities, particularly to Holsman v. St. John (90 N. Y. 461) and Pringle v. Long Island R. R. Co. (27 App. Div. 144). These are undoubted- authorities in favor of the appellants’ contention. The case of Pringle v. Long Island R. R. Co. (supra) merely followed the decision in Holsman v. St. John (supra),. • in which the Court of Appeals said : “ All applications to continue an action in case of the death of a party must be made by motion and upon proper affidavits showing the facts,-and the court must grant the •order. Even under the old Code, where the language was permissive, it was held by this court that in an action at law ‘ no mere lapse of time would absolutely defeat an application for its continuance on a supplemental complaint in the name of a representative of a deceased party.’ (Evans v. Cleveland, 72 N. Y. 486.)” In the Pringle Case (supra) attention was not called to the three cases of Shipman v. Long Island R. R. Co. (11 App. Div. 49); Lyon v. Park (111 N. Y. 350) and Mason v. Sanford (137 id. 497). In the latter case (p. 500), upon a review of the authorities, it was said : “ 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 reviver within the period of limitation.” Although there thus ajipears to be a conflict of authorities, this court should follow the later decisions, not only because in point of time they are the later expressions of our Court of Appeals, but also because they seem to be founded upon stronger reasons and recognize the force of the decisions in our courts which uniformly , support the discretionary power in determining whether or not relief should be accorded where there is laches. . As under the rule stated laches is a bar to the right to have an action revived, it follows for the reasons given by the learned judge in the opinion below, that the order appealed from should be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.