Washington Trust Co. of City of New York v. Baldwin

118 A.D. 186, 102 N.Y.S. 1105, 1907 N.Y. App. Div. LEXIS 640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1907
• Status: Published

Opinions

Ingraham, J.:

This action was commenced in 1896 upon a demand note dated October 1, 1895. Ho answer was interposed by the defendant and no judgment was entered. The original defendant made payments on account. He died, however, on May 12, 1897,"leaving a will which was admitted to probate and letters testamentary issued to William Woodward Baldwin on Juno 23, 1897. The executor advertised for claims and on the 1st of September, 1898, the plaintiff filed a' claim upon this promissory note with the executor without stating that an action was pending. Hothing further was done, the executor neither rejecting nor admitting tho claim. On October 1, 1906, the executor filed his final accounts, from which it appears that the estate is largely insolvent; and in that account the executor has stated that he contests the right of this plaintiff to participate in the estate upon the ground that the note is barred by the Statute of Limitations. Whereupon the. plaintiff made a motion to revive the action as against the executor. This motion was made on the 26th day of Hovember, 1906, nearly ton years after the death of the testator and letters testamentary had been issued to his executor. That motion: was granted and from the order granting it the executor appeals.

It seems to be settled that-in an action at law there is no time fixed within which a motion to' revive is barred, the time within which an action in equity can be revived being ten years. Bor some time it was considered doubtful whether or not the-mere lapse of time justified the court in denying an application to revive an action at law, but that question was set at rest in Pringle v. L. I. R. R. Co. (157 N. Y. 100), where it was held that, although there was no time fixed within which an application to revive must be made, the court was justified in denying the application where laches was shown. Since that time it. has been generally .recognized that waiting until the demand would be barred by the Statute of Limitations was such laches as, unexplained, justified a court in denying the motion to revive. In Hale v. Shannon (58 App. Div. 247) we held that a delay of between nine and ten. years was such laches as required the court to deny the motion to revive. Here the cause of action is long outlawed, and the time within which an action can be brought upon this obligation, if it accrued at the time of the death of the testator, has long since expired. There is no excusé offered. The executor swears that since the death of the testator one of ,his sons has died; that the executor never heard of this action, and that the plaintiff filed his claim with the executor without mentioning. the fact that an action had been brought to enforce it. If no action had been pending at the death of the testator the claim would have been outlawed. The mere fact that such an action was pending and that the defendant has neglected to prosecute it without any excuse for a period which would bar the claim under the statute if it accrued when letters were issued, required the court to refuse to revive the action.

I think, therefore, that the order appealed from should be reversed, With ten dollars costs and disburseihents, and the motion to revive the action denied, with ten dollars costs.

Patterson, P. J., Laughlin and Lambert, JJ., concurred; Houghton, J., dissented.