
    MARKELL v. NESTER.
    (Supreme Court, Appellate Division, Fourth Department.
    May 7, 1898.)
    Abatement and Revival—Death op Party—Laches.
    Code Civ. Proc. § 757, provides that actions which survive shall, on the death of a sole plaintiff or defendant, be continued by the personal representative. Section 761 gives the court discretion, on motion and notice, to abate the action unless continued within not less than six nor more than twelve months thereafter. One suing for commissions died, and his administratrix was appointed nearly three years afterwards, and two days later moved to be substituted as plaintiff. Defendant made a counter showing' that his witnesses, relied on to prove payment, had in the interval died, and he could not prove his defense. Held, that the administratrix was guilty of no laches, and, defendant not having moved to abate such action, the order of substitution was properly granted.
    Appeal from special term, Monroe county.
    Action by John H. Markell against Samuel K. Nester. From an order substituting Nellie E. Chamberlain, administratrix, on plaintiff’s death, and also substituting attorneys for plaintiff, defendant appeals.
    Affirmed.
    Appeal from an order made at the Monroe special term on the 28th day of March, 1898, substituting Nellie E. Chamberlain as administratrix of the goods, chattels, and credits of the said John H. Markell, as plaintiff, in the place of said Markell, deceased, and also substituting attorneys for the plaintiff. On the 14th day of January, 1892, W. 0. Hazelton, attorney, commenced the action upon an agreement made by the defendant with the plaintiff, as the defendant’s agent, for the purchase of barley, agreeing to pay the plaintiff for his services thereof, and storage, two cents per bushel'for all the plaintiff purchased, and which was delivered by the sellérs at the railroad station. The complaint alleged that 'between the 25th day of August, 1896, and the 19th day of May, 1897, the plaintiff purchased 32,860 bushels and 11 pounds of barley; that the total purchases were 32,860.11 bushels; and that the plaintiff’s commissions amounted to §657.20 for the quantity delivered at one depot, and the commis ■ sions for the quantity purchased and delivered at another point amounted to $263.82, malting the total commissions of the plaintiff the sum of $921.02; and that the defendant had paid $160.98 to apply on the commissions and services, and no more, leaving due the sum of $760.04 and interest from the 19th of May, 1887. The defendant answered, and set up an agreement with the plaintiff, and alleged “that the ■ defendant, from time to time during said employment, paid and advanced to the plaintiff the full purchase price for said barley, -and, from time to time during the same period, paid to the plaintiff in full his said commissions for purchasing and delivering said barley,” and in other respects denied the complaint. On the 17th of August, 1892, the issues were referred to F. L. Manning, Esq., to hear, try, and determine. On the 4th day of March, 1895, Mr. Bachman was substituted as attorney in the place of Baclcenstose & ICeyes, who were the attorneys who served the answer. On or about the 31st day of January, 1895, John H. Markell, the plaintiff, died, intestate; and on the 25th day of January, 1898, Nellie E. Chamberlain was appointed by the surrogate’s court 'of the county of Seneca administratrix of the goods, chattels, and credits of the said John H. Markell, deceased. Letters of administration were issued to her. Two days thereafter, to wit, on the :17th'day of January, 1898, she made the affidavit used upon the motion. The affidavit of the defendant states that one Jenkinson was an important witness, hy whom he could prove the payment of the claim, and that he died on the 16th of March, 1889. The affidavit of the defendant also states that one A. J. Smith knew of some of the payments made hy the defendant to the plaintiff, and heard some admissions made by the plaintiff to the effect that the defendant had paid the plaintiff for his services, and that Smith died on the 3d day of July, 1897, and that the defendant “cannot prove the payment of said commissions and for said services of the plaintiff or either by any one since the death of said Smith.”
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.
    George L. Bachman, for appellant.
    J. N. Hammond, for respondent.
   HARDIN, P. J.

Section 757 of the Code of Civil Procedure provides as follows:

“In case of the death of a sole plaintiff, or a sole defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued, by or against his representative or successor in interest.”

An inspection of the complaint shows that the cause of action stated is one which survives. It is provided by section 761 of the Code of Civil Procedure that, after the death of the plaintiff, the court may “in its discretion, upon notice to such persons as it directs, and upon the application of the adverse party, or of a person whose interest is affected, direct that the action abate, unless it is continued by the proper parties, within a time specified in the order, not less than six months, nor more than one year, after the granting thereof.” The defendant did not avail himself of the provisions of this section. From the 17th of August, 1892, until the 23d of January, 1895,—27 months and 14 days,—it was within the power of the defendant to have noticed the reference, and compelled a trial of the issues or a dismisal of the complaint. The administratrix moved promptly after her appointment for a substitution. She was guilty of no laches.

Upon the papers presented at the special term, a case was not made requiring the denial of the motion for substitution. We are satisfied with the direction the discretion of the special term took. Lyon v. Park, 111 N. Y. 357, 18 N. E. 863; Mason v. Sanford, 137 N. Y. 500, 33 N. E. 546. In the case just cited, it wras said:

“The rule as to the revival of actions by the substitution of the representative of a decease;! party in this state is as follows: In legal actions there is no mere time limitations, but the motion to revive may be denied for laches in making the motion.”

In Wright v. Chase, 77 Hun, 90, 28 N. Y. Supp. 310, the county court had exercised its discretion, and, on an appeal from an order refusing to revive the action, it was said that the discretion of the county court could not be reviewed.

In Holsman v. St. John, 90 N. Y. 461, it was held that the merits of a case for the defense should not be determined on a motion to revive an action.

Laches ought not to be imputed to the administratrix until her appointment. Barnes v. City of Brooklyn, 22 App. Div. 520, 48 N. Y. Supp. 36. As has been stated, she was appointed on the 25th day of January, 1898, and her affidavit used upon this motion was made two days thereafter, on the 27th of January, 1898, and the notice of motion bears date the 31st of January, 1898. We think the order made at special term should be sustained.

Order affirmed, with $10 costs and disbursements. All concur.  