
    Ann Duffy, Pl’ff, v. Michael Duffy, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 7, 1889.)
    
    Practice—Revtvor of actios—Code Civ. Pro., § 757.
    1877 the plaintiff died while the action, which was an equitable one, wa pending. From that time up to 1888 nothing was done when her successors in interest made application to have the action revived and continued. The application was denied, and this appeal being taken Feld that as there existed a conflict between the two decisions construing the statute respecting the revivor or continuance of an action, and as the later decision takes no notice of the first case, the question should be once more presented to the court of appeals, and for that reason the order should be affirmed.
    Appeal by Rosanna Hughes and others, heirs at law of Ann Duffy, plaintiff, deceased, from an order made at special term denying their motion to have the action revived and continued in their names.
    
      E. B. & C. P. Cowles, for app’lts; H. B. Closson and John E. Parsons, for resp’t.
   Freedman, J.

This action was begun in September, 1863, to have a certain deed set aside as fraudulent and void. In 1877 Ann Duffy, the plaintiff, died while the action was still pending. Since that time nothing was done until August, 1888, when the appellants, as successors in interest, moved to have the action revived and continued.

The motion was denied on the ground that too much time had elapsed, and from the order denying the same the present appeal is taken. The question involved depends upon the construction of section 757 of the Code of Civil Procedure, as amended by chapter 542, Laws of 1879. In Coit v. Campbell (82 N. Y., 509), upon the authority of which the motion was denied, the court of appeals construed the said section, as amended, to mean that the granting of the motion is not compulsory in all cases ; that the right to a revivor or continuance is to be determined according to the settled rules of equity, so far as established by precedent, and that it is a rule of equity thus established that the discretion of the court to refuse to revive a suit on the ground of delay, is to be guided by the statute-of limitations applicable to the subject matter of the suit. Under this construction the motion was properly denied.

The appellants rely, however, upon the later case of Holsman v. St. John (90 N. Y., 461), in which the same section, as amended, was again construed, but without noticing in any manner the prior construction given to the section. It was there held that it is obligatory upon the court to grant a motion to revive made upon proper affidavits showing the necessary facts, and that no mere-lapse of time can defeat the application.

There is certainly an apparent, if not a real conflict between the decision of these two cases, and ordinarily the later should be followed as the more recent exposition of the law, unless a distinction can be drawn between them.

The only distinction I am able to draw is, that in the first-case the action was in equity, and in the second case, it was-an action at law Whether that distinction is a sound one, and whether it shall be maintained, may be still a debatable question, notwithstanding Greene v. Martine (21 Hun, 136; affirmed 84 N. Y., 648), and it is an important question which can be finally determined by the court of appeals only. In view of its great importance, and the fact that the opinion delivered in the second case above referred to; takes no notice whatever of the grounds of the decision of the first case, the question should be once more presented to that court for final determination.

For the reason stated,' and the action now sought to be-revived and continued, being of an equitable character, I think it is in the interest of all parties to affirm the order appealed from, so that the question involved may be squarely presented to the court of appeals and put at rest by that court.

Order affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Ingraham, J., concur.  