
    James E. Lyon, App'lt, v. Trenor W. Park et al., Respt’s.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Abatement and revival—Code Civ. Pro., § 755.
    The right of a paitv to a continuance of an action hy or against the-.representatives of the deceased | arty where the cause of action survives, does ot depend upon the existence of (he nreeise circumstances stared in Code Ci'-il Proce ure. § 757, or the following sections. The paramount rule is declared in section 7‘5, that an action does not abate b, t nv event if the cause of action urvives or continues The first mentioned sections settle the rule of survivor-hip in certain cases and do not limit the power of the court to contimi an action to those cases only.
    3. Same—When court may deny application fob revival.
    Although hy Code Civil Procedure, § 755, an action in no case abates 
      hy the death of the party where the cause of action revival, yet as an application to the court is necessary to authorize its reviewal or continuance, the court may on the ground of excessive laches' and where, otherwise irreparable injury will be suffered, deny the application.
    3. Same—When properly denied on account or laches.
    In August, 1886, the plaintiff made this motion to revive and continue the action against Ihe representatives of the estate of the original defendants, Park and Baxter (both of them had died since its commencement), and also to bo released from his default and failure to file a bond, as security for costs, as required by order of the court, made June 11, 1878, and that he ho permitted to comply with the order. The said order was duly served on tho same day that it was made, and was the last proceeding In the action until the making of this motion. Park died in December, 1882. Baxter, in September, 1884. The cause of the action survived the death of the defendants Park and Baxter. The actiontwas not brought originally until the statute had nearly run. The plaintiff apparently waited.until the parlies and witnesses were dead before attempting to proceed with the action. Held, that the motion for a revivor was properly denied; that the right to the continuance of the action on the death of the party where the cause of action survives, is not of-so absolute a character as to preclude the court in the exercise of a legal discretion having regard to all the circumstances, from denying a continuance.
    
      4. Same—When party entitled to under Code Civ. Pro., § 755.
    If it had not been for the laches of the plaintiff, he would have been entitled to a continuance, although the circumstances did not bring the case within any of the sections following Code Civ. Pro., § 755, by force of the rule declared in that section.
    5. Foreign administrator.
    The remedy against a foreign administrator in his representative capacity, to charge the estate of his intestate for the debts or liabilities of the decedent is governed by thelaw of the jurisdiction where he was appointed and must be pursued in the legal tribunals of the state or country where the deceased resided at the time of his death, and where administration was granted.
    Appeal from an order of the general term of the New York superior court, affirming an order made at special term thereof, denying plaintiff’s motion for leave to revive the cause against the estate of Park and Baxter, and give security for costs.
    
      Ewing & Southard, O. W. Campbell & V. Wright Kingsley, for appl’t; Jennings & Bussell, for respt’s.
    
      
       Affirming 12 N. Y. State Rep., 69.
    
   Andrews, J.

In August, 1886, the plaintiff made this motion to revive and continue the action against the representatives of the estate of the original defendants, Park and Baxter, both of whom have died since its commencement, and also to he released from his default and failure to file a bond as security for costs, as required by order of the court, made June 11,1878, and that he he permitted to comply with that order. The motion was denied hy the special term as to the representatives of Park, for laches, and dismissed as to the representatives of Baxter, on the ground that no administration had ever been granted on his estate in this state. The general term affirmed the order of the special term, and the plaintiff appeals to this court.

The action was commenced hy the service of a summons-on Park and Baxter, in June, 1877. One Stewart was named in -the summons as a co-defendant, but was never served with process and has not appeared in the action. The complaint sets out a cause of action for fraud and conspiracy, by means of which the defendants, as is alleged, induced the plaintiff in 1871, to transfer to the defendant, Park, for the benefit of himself and his co-defendants, a valuable contract entered into'between the plaintiff and the “ Emma-Silver Mining Company,” by which contract in a certain contingency the plaintiff was to have a large interest in the proceeds of the sale of the stock of the company.

The order of June 11, 1878, was made on the application of Park and Baxter, on the ground that the plaintiff was anon-resident of this state, and the order required him to file-a bond in the penalty of $3,000, with sureties, within sixty days after service of a copy of the order, as security for costs to the defendants, Park and Baxter, and meanwhile stayed all proceedings on his part in the action, except to-move to vacate the order, until the bond should be given and the sureties, if excepted to, should justify.

The order of June 11, 1878, was duly served on the same-day, and was the last proceeding in the action until the making of this motion June 22, 1886. The plaintiff has never complied with the order. Park died December 13, 1882, and Baxter February 17, 1884. Ancillary letters of administration on the estate of Park were granted in this state January 12, 1883. Baxter, at his death, was a resident of Vermont, and administration on his estate was-granted in that state February 22, 1884, but no letters, ancillary or original, have been issued in this state.

It was shown in opposition to the motion that the defendants Park and Baxter were material witnesses for the-defense, and that numerous other important witnesses for the defense have died since the commencement of the action and during the stay of proceedings, by reason of which the defense of the action at this time will be greatly prejudiced. There can be no doubt that the motion -was properly dismissed as to the representatives of the defendant Baxter. The remedy against a foreign administrator in his representative character, to charge the assets of his intestate for a debt or liability of the decedent, is governed by the law of the jurisdiction where he was appointed, and must be pursued in tbe legal tribunals-of the state or country where the decedent resided at the time of his death, and where administration was granted. Sto. Con. of Laws, § 513; Schouler on Ex’rs, § 173; Petersen v. Chemical Bank, 32 N. Y., 21; Hedenberg v. Hedenberg, 46 Conn., 30.

Whatever qualifications to this rule may exist, they proceed upon special reasons and are not material to the present controversy. The question is therefore narrowed to the alleged right of the plaintiff to a revivor or continuance against the representatives of Park. It is conceded that the cause of action survived the death of the defendants Park and Baxter. The authorities on this point are conclusive Haight v. Hayt, 19 N. Y., 464; Union Bank v. Mott, 27 id., 633; Brackett v. Griswold, 103 id., 428; 7 N. Y. State Rep., 863. The action, therefore, did not abate on their death. Code, § 755. But their death rendered it necessary that the plaintiff should apply to the court for an order to continue the action against their representatives, if he desired to proceed. If but one of the defendants had died, their liability being both joint and several, the plaintiff could have proceeded against the survivor without bringing in the representatives of the deceased co-defendant.

It is claimed, on behalf of the plaintiff, that by force of section 755 of the Code, he has an absolute right to an order continuing the action against the representatives of Park, and that no delay on his part, in making the application, is a defense to the motion. It is further claimed that the case is within section 757, which, in terms, is mandatory and requires the court on motion to allow or compel an action to be continued in case of the death of a sole plaintiff or sole defendant.

This section was considered in Coit v. Campbell (82 N. Y., 517), and, although the case was decided on another ground, the learned judge who wrote in that case was of opinion that the mandatory language of the section related to the mode of relief, and that it did not preclude the court in an equity case from denying an application made under that section, upon grounds which, according to the rules of courts of equity, would have constituted a good defense to a bill of revivor.

But whatever may be the true construction of that section, it has no application here. The defendant Park was not a sole defendant, He died before Baxter, and Baxter then became sole defendant, and his representatives were alone within the provisions of section 757. Coit v. Campbell, supra.

Nor do the subsequent sections have any application. The first clause of section 758 expresses what probably,, without any affirmative enactment, would be the rule, and the second clause relates to actions on contracts exclusively. Section 759 seems to relate to equitable actions, and was designed to put into statutory form the rule declared by the chancellor in Leggett v. Dubois (2 Paige, 211); White v. Buloid (id., 475), and Hoffman v. Treadwell (6 id., 308).

But we do not think that the right of a party to the continuance of an action by or against the representatives of a deceased parly, where the cause of action survives, depends upon the existence of the precise circumstances stated "in section 757, or the following sections. The paramount ruléis declared in section 755, that an action does not abate by any event, if the cause of action survives or continues. The subsequent actions seem to have been enacted to meet certain difficulties occasioned by decisions, and to settle the rule of survB orship in certain cases, and not to limit to those cases only the power of the court to continue an action. It had been held that on the death of a sole defendant, before an interest had accrued to him, the action could only be continued at the. option of the plaintiff. Keene v. LaFarge, 1 Bosw., 671; Souillard, v. Dias, 9 Paige, 393.

Section 757 seems to have been enacted to provide a uniform rule on the subject applicable to both parties. Section 758 is supposed to have made a radical change in the rule theretofore adopted by the courts in respect to the survivability of a cause of action on a joint contract, in case of the death of one of the joint contractors, who was a surety. Randall v. Sackett, 77 N. Y., 480. The purpose of section 750 has been adverted to.

In our opinion the plaintiff was entitled to a continuance, although the circumstances do not bring the case within any of the sections following section 755, by force of the general rule declared in that section, unless his laches is a sufficient answer to his motion. It was decided in Evans v. Cleveland, 72 N. Y., 486, that the statute of limitations was not a defense to a legal action which the court had permitted to be revived on supplemental complaint, after the death of the original plaintiff, unless the cause of action was barred when the action was commenced, however long’ the delay between the death of the plaintiff and the application for a continuance. In equitable actions, according to the opinion of the learned judge who wrote in Coit v. Campbell (supra), the rule which prevailed on bills of revivor, and which denied relief when the bill was not filed until a period had elapsed after the appointment of an administrator or representative of the decedent, equal to the period of legal limitation of action, should be followed and applied. But it has never been held in this court that an unexplained or inexcusable neglect to proceed for a long period, during which the other party has lost his means of defense, may not be a sufficient ground for denying a continuance. By section 755, an action in no case abates by the death of a party, where the cause of action survives, but -as an application to the court is necessary to authorize its revival or continuance, the court, we think, may, on.the ground of inexcusable laches, and where otherwise irreparable injury will be suffered, deny the application. Legal rights are frequently lost by laches where no question of the statute of limitations is involved, and we think the right to a continuance of an action on the death of a party, where the cause of action survives, is not of so absolute a character as to preclude the court in the exercise of a legal discretion, having regard to all the circumstances, from denying a continuance. The power of the court to deny the application where the “delay has been unreasonable and in any way damaging to the defendant,” was expressly recognized in Evans v. Cleveland (supra). The primary duty to move to continue the action, rested on the plaintiff. Assuming that the defendant might compel a revivor by the plaintiff, or in the alternative an abandonment of the action, this would not excuse the laches of the plaintiff. Section 7G1 only applies in case of the death or marriage of a plaintiff, and in that case authorizes the' adverse party to apply for an order that the action abate unless continued by the proper parties within a specified time.

We think the motion was properly denied in this case. The action was not brought originally until the statute had nearly run: The order to filo security for costs was made and served eight years before this motion was noticed, and has never boon complied-with. Park died three and a half years before the motion, was made, and administrators of his estate were appointed in January, 1888. The plaintiff apparently waited uni.il the partios and witnesses against him were dead, before attempting to proceed with the action. Ilis failure to file the bond would entitle the representatives of Park to apply for a dismissal of the action. (Code, sec. 32:3 i). The permission to file security at this time, was made an essential part of the motion, and the court might properly deny the motion for this relief, and this alone would justify the denial of tho whole motion.

The order should be affirmed.

All concur.  