Pizza v. Circle Coal & Coke Co.

169 Misc. 897, 9 N.Y.S.2d 261, 1938 N.Y. Misc. LEXIS 2281

• Court: New York Supreme Court
• Decided: December 5, 1938
• Status: Published

Opinion

Cuff, J.

Objection is made (1) that an executor is not included

within the terms of section 198-a of the Civil Practice Act, (2) laches, (3) that plaintiff seeks to circumvent an application for a stay when a judgment is entered due to a dismissal of the complaint on March 5, 1937. The first objection cannot be sustained. The act does not except executors, and Daus v. Nussberger (25 App. Div. 185 [1st Dept.]), while denying an application, clearly indicated that it would have been granted on a different showing by the petitioner. The argument that not only the estate but the next of kin, who would benefit by a judgment, must qualify as poor persons, must also be overruled. This action is by the estate. The financial condition of the next of kin can have no bearing; they could not maintain the action as individuals, consequently their status means nothing. With respect to the charge of laches, I do not find that plaintiff was guilty of long delay. But his reason for not moving is a persuading one. He tried to raise the funds necessary to finance the suit to avoid the humility incidental to an application of this kind but after making efforts extending over a period he was unsuccessful. The court fees charged for carrying a case through the Supreme Court of this county are heavy. The court accepts the executor’s explanation. The charge that plaintiff seeks to defeat a judgment for costs that may be entered by reason of the dismissal of the complaint on March 5, 1937, cannot be sustained. (See Monteforte v. Ætna Life Ins. Co., 162 N. Y. Supp. 762.)

Motion granted.