
    The Washington Trust Company of the City of New York, Respondent, v. Christopher C. Baldwin, Defendant.
    William Woodward Baldwin, as Executor, etc., of Christopher C. Baldwin, Deceased, Appellant.
    First Department,
    March 8, 1907.
    Practice—revival of action—application denied for laches.
    In an action at law there is no fixed time within which the action may be revived against the executor of a deceased defendant. The time within which an action in- equity can be revived is ten years.
    But although there is no fixed time within which application tó revive an action at law must he made, the court may deny the application for laches, and where, without excuse, a party delays until the Statute of Limitations would have barred the action, a motion to reviVe it should he denied.
    Houghton, J., dissented, with opinion. __ ■ "
    
      Appeal by William Woodward Baldwin, as. executor, etc.,, of Christopher C. Baldwin, deceased, from an order of the Supreme Court, -made at the New York Special Term and entered in the. office of the clerk'of the county of New York on the 10th day of December, 1906, granting the plaintiff’s motion for leave to revive and continue the above-entitled action against the said executor.
    
      Maunsell B. Field, for the appellant.
    
      W. C. Percy, for the respondent.
   Ingraham, J.:

This action was commenced in 1896 upon a demand note dated October 1, 1895. Ho answer was interposed by the defendant and no judgment was entered. The original defendant made payments on account. He died, however, on May 12, 1897,"leaving a will which was admitted to probate and letters testamentary issued to William Woodward Baldwin on Juno 23, 1897. The executor advertised for claims and on the 1st of September, 1898, the plaintiff filed a' claim upon this promissory note with the executor without stating that an action was pending. Hothing further was done, the executor neither rejecting nor admitting tho claim. On October 1, 1906, the executor filed his final accounts, from which it appears that the estate is largely insolvent; and in that account the executor has stated that he contests the right of this plaintiff to participate in the estate upon the ground that the note is barred by the Statute of Limitations. Whereupon the. plaintiff made a motion to revive the action as against the executor. This motion was made on the 26th day of Hovember, 1906, nearly ton years after the death of the testator and letters testamentary had been issued to his executor. That motion: was granted and from the order granting it the executor appeals.

It seems to be settled that-in an action at law there is no time fixed within which a motion to' revive is barred, the time within which an action in equity can be revived being ten years. Bor some time it was considered doubtful whether or not the-mere lapse of time justified the court in denying an application to revive an action at law, but that question was set at rest in Pringle v. L. I. R. R. Co. (157 N. Y. 100), where it was held that, although there was no time fixed within which an application to revive must be made, the court was justified in denying the application where laches was shown. Since that time it. has been generally .recognized that waiting until the demand would be barred by the Statute of Limitations was such laches as, unexplained, justified a court in denying the motion to revive. In Hale v. Shannon (58 App. Div. 247) we held that a delay of between nine and ten. years was such laches as required the court to deny the motion to revive. Here the cause of action is long outlawed, and the time within which an action can be brought upon this obligation, if it accrued at the time of the death of the testator, has long since expired. There is no excusé offered. The executor swears that since the death of the testator one of ,his sons has died; that the executor never heard of this action, and that the plaintiff filed his claim with the executor without mentioning. the fact that an action had been brought to enforce it. If no action had been pending at the death of the testator the claim would have been outlawed. The mere fact that such an action was pending and that the defendant has neglected to prosecute it without any excuse for a period which would bar the claim under the statute if it accrued when letters were issued, required the court to refuse to revive the action.

I think, therefore, that the order appealed from should be reversed, With ten dollars costs and disburseihents, and the motion to revive the action denied, with ten dollars costs.

Patterson, P. J., Laughlin and Lambert, JJ., concurred; Houghton, J., dissented.

Houghton, J. (dissenting):

I think the order of revival was right and should be affirmed.

The laches, of plaintiff is not inexcusable. Action had been brought on the note during the lifetime of testator, and judgment was not entered because of agreed payments which, he made up to his decease. After the qualification of the executor the claim was presented to him in due course, and was retained by him without dispute as to'its validity for years, and until he filed his accounts in-'the Surrogate’s Court. The retention of the claim without ^rejection for such- length of time naturally and. properly led plaintiff to assume' that there was no question of its genuineness. If it was admitted as a claim agairist the estate, as plaintiff had a right to assume it was, there was no occasion to revive the action and seek to obtain judgment, for no necessity existed therefor and no advantage or preference could be obtained thereby. By defendant’s'own act of retaining the claim without dispute, he led plaintiff to assume there was no occasion to revive the action and no laches on plaintiff’s part can be predicated on the course it pursued.

The defendant does riot pretend that any witness who could testify to the invalidity of the note has died, so that he has been deprived of his evidence by the delay. He says some persons have died but refrains from stating they could testify to any facts if they were alive. He also says he does not know of any facts on which to base a defense and does not know of any persons now alive who do. Ho more did his testator know of any defense, .and he expressly recognized the validity of the note by making payments after the action was begun against him. The delay has not .prejudiced defendant or deprived him of any testimony or defense he-once had.

On the other hand, if it was true, as defendant asserts, that he now has the right to dispute the note and interpose the defense of the'Statute of Limitations, the plaintiff will suffer irreparable injury. More than nine years have elapsed since the death of the testator, and more than eight years since the presentation of the claim. The plaintiff has no possible answer to the Statute of Limitations if it can now be interposed.

Personally, I do not think the law is or ought to be that an executor or administrator can retain a claim duly presented against his estate until the six-year Statute of Limitations lias run and then reject it and plead the statute; but the defendant asserts that right, and -on the assumption that such right exists it seems to me a very grave judicial error to deny "to plaintiff the right to revive and prosecute its action to judgment.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.  