
    Thomas F. Mason, Rec’r, Resp’t, v. Samuel T. W. Sanford Impl’d, Def’t.
    
    
      (Court of Appeals,
    
    
      Filed March 21, 1893.)
    
    Abatement and bbvivor — Laches.
    In legal actions there is no mere time limitation, but the motion to revive in the name of the representative of a deceased party 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 revivor within the period of limitation.
    Appeal from judgment of the supreme court, general term, first department, affirming order reviving action.
    
      P. H. Vernon, for app’lts; William C. Trull, for resp’t.
    
      
       Affirming 45 St. Rep., 762.
    
   Earl, J.

This action was commenced by Henry R. Pierson, as receiver, and, he having died, Thomas F. Mason was substituted as plaintiff in his stead. The action was commenced in 1879, against the defendants, as trustees of the Widows & Orphans’ Benefit Life Insurance Company, for an accounting as to the assets of the company diverted, wasted and misapplied by them in the manner and under the circumstances described in the complaint. The action was put in issue by the answers of the defendants, and the defendant, Sanford, died in October, 1882. He left a will which was admitted to probate in January, 1883, and letters testamentary thereon were issued at that time to the executor named therein. In March, 1891, the plaintiff made a motion for leave to sever the action and revive the same against the executor, and the motion was granted. The executor claims that the action could not be revived against him because more than six years had elapsed after letters testamentary were issued to him, and he invokes the rule which has obtained in courts of equity, that an action in equity will not be revived against the representatives of a deceased party where there has been such a lapse of time since administration was granted upon his estate as would have barred the action if the same time had elapsed after the cause of action, had accrued before the commencement of the action. And he cites Mitford’s Ch. Pl., 290; Cooper’s Eq Pl., 302 ; Story’s Eq. Pl., § 831; Hollingshead's Case, 1 Peere Williams, 742; Coit v. Campbell, 82 N. Y., 509. The rule which he invokes could not be so applied as to defeat this motion, because, for the purpose of revivor, this action must obviously be treated either as an action at law or an action in equity.

If it be treated as an action at law then, as we held in Evans v. Cleveland, 72 N. Y., 486, no mere lapse of time could absolutely defeat the application for a continuation of such an action in the name of the representative of the deceased party. If it be treated as an action in equity, then the ten years limitation applied. It would be an unjust application of the rule contended for to hold that while this is an action in equity, yet because the same relief could have been obtained in an action at law, therefore the legal limitation which should have been applied to the action is six years instead of ten, and thus obtain a defense to this motion which would not have been available if the action had been distinctly one at law or one in equity, where equitable relief only could be granted. Therefore, for this reason, without determining whether the plaintiff could have obtained the same relief in an action at law which he seeks in this action, we are of opinion that the lapse of time furnishes no defense to the motion of the plaintiff.

But there is a further answer to the position taken by the executor in opposition, to this motion. The action is distinctly in equity and prays only for-equitable relief. We cannot now say by looking at the pleadings that all the relief the plaintiff will obtain will be such as he could obtain-in an action at law. We cannot now foresee what state of things will be developed upon the trial, nor what kind of relief will be justified and required by the facts which may be found to exist. It may turn out that all the relief the plaintiff will need and obtain will be such as he could have obtained in an action at law. But we cannot now certainly know that, and hence we cannot in considering this motion assume it, and on that ground bold that it should have been denied on the ground of the lapse of the six years.

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 revivor within the period of limitation. Evans v. Cleveland; Coit v. Campbell, supra; Lyon v. Park, 111 N. Y., 350; 19 St. Rep., 626.

We are, therefore, of opinion that the order should be affirmed, with costs.

All concur, except Beckham, J., not sitting.  