Mason v. Sandford , 45 N.Y. St. Rep. 762 ( 1892 )

Per Curiam.

The power of the court to grant this order has been settled by the court of appeals, affirming the order of this court reviving the action, as against the executors of another, defendant. See Mason v. Morgan, 121 N. Y. 705, 24 N. E. Rep. 1100. The only question presented upon this appeal is whether the court below should have granted the application in the exercise of its discretion, or denied the same in consequence of loches in making the motion. The rule, as stated by the court of appeals in Lyon v. Park, 111 N. Y. 357, 18 N. E. Rep. 863, is that, “as the application to the court is necessary to authorize its revival or continuance, the court, we think, may, on the ground of unreasonable loches, or where otherwise irreparable injury will be suffered, deny the application.” We think that the facts presented in this case show that the delay in making the application was not such unreasonable loches as would justify a denial thereof. It is not suggested that any injury has resulted, or will result, to the appellants, in consequence of the delay. Ho rights have been lost; no evidence is not now attainable that could have been procured at the time of the death of the appellants’ testator; and nothing appears to indicate that the appellants have been in any way injured by the failure to revive within a reasonable time after the death of the appellants’ testator. We think, therefore, that the order was right, and should be affirmed, with $10 costs and disbursements. All concur.