
    James J. McInnis, Plaintiff, v. Charles W. Gardiner, Defendant.
    (Supreme Court, New York Special Term,
    February, 1899.)
    Continuance oí action — Terms — Laches.
    Where the executors of a deceased plaintiff delayed two years in moving to continue the action and in the meantime some oí the defendant’s witnesses had died, the court granted the motion on payment by the executors of all costs to date as well as costé of the motion and also required the executors to stipulate that they would try the case when it was reached.
    Motion to continue action in name of executors.
    C. C. Beaman, for motion.
    Asa Bird Gardiner, opposed.
   Gildersleeve, J.

This is a motion to continue the action in the name of the executors of the deceased plaintiff, and for leave to serve -a supplementary complaint. Opposition is made to the motion on the ground of laches in the prosecution of the action, and for the reason that some important witnesses for the defendant have died. Section 757 of the Code provides that in case of the death of a sole plaintiff, or defendant, if the cause of action survives, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest. Although the defendant claims to have been damaged by the laches of plaintiff or his executors, he has not seen fit to apply to the court, under section 822 of the Code, to dismiss the complaint for unreasonable delay in prosecuting the action. However, as he appears to have been prejudiced by the laches camplained of, I think that onerous conditions should be imposed as a condition for granting the motion. The action was begun in 1895, the plaintiff died in 1896, the executors qualified in 1897, and yeti this motion was not made until February, 1899. There has certainly been gross laches, and the defendant has been prejudiced thereby in the death of some of his witnesses. The motion is granted, upon payment of all the costs to date, to be taxed by the clerk, and upon the executors stipulating to try the case when" reached; $10 costs of the motion to the defendant. Settle order of notice.

Motion granted, $10 costs of motion to defendant.  