Mason v. Sanford

• Decision Date: 21 March 1893
• Citation: 33 N.E. 546,137 N.Y. 497
• Parties: MASON v. SANFORD et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 497

33 N.E. 546

MASON

v.SANFORD et al.

Court of Appeals of New York.

March 21, 1893.

Appeal from supreme court, general term, first department.

Action by Thomas F. Mason, as receiver of the Widows' & Orphans' Benefit Life Insurance Company, against Samuel T. W. Sanford, deceased, and others. From a judgment of the supreme court, general term, (18 N. Y. Supp. 662,) affirming an order severing the action and reviving the same against defendants, Drurie S. Sanford, executor of Samuel T. W. Sanford, deceased, appeals. Affirmed.

P. H. Vernon, for appellants.

Wililam C. Tull, for respondent.

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 representative 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 commencementof the action; and he cites Mitf. Ch. Pl. 290; Coop. Eq. Pl. 302; Story, Eq. Pl. § 831; Hollingshead Case, 1 P. Wms. 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 10-years limitation applied. It would be an unjust application of the rule contended for to hold that, while this is an action in...