¶1Section 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.”
¶2An inspection of the complaint shows that the cause of action stated is one which survives.
¶3It 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.”
¶4The defendant did not avail himself of the provisions of this section. From the 17th of August, 1892, until "the 23d of January, 1895, twenty-seven months and fourteen days, it was within the power of the defendant to have noticed the reference and compelled a trial of the issues or a dismissal of the complaint. The adminis*58tratrix moved promptly after her appointment for a substitution. She was guilty of no laches.
¶5Upon the papers presented at the Special Term, a case was not made requiring the denial of the motion fpr substitution. We are satisfied with the direction the discretion of the Special Term took. (Lyon v. Park, 111 N. Y. 357; Mason v. Sanford, 137 id. 500.) In the case just cited it was said : “ The rule as to the revival of actions by the substitution of the representative of a deceased party in this State is as follows: In legal actions there is no mere time limitation, but the motion to revive may be denied for laches in making the motion.”
¶6In Wright v. Chase (77 Hun, 90) the County Court had exercised its discretion, and an appeal from an order refusing to revive the action, and it was-said that the discretion of the County Court could not be reviewed.
¶7In 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.
¶8Laches ought not to be imputed to the administratrix until her appointment. (Barnes v. City of Brooklyn, 22 App. Div. 520.) 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.
¶9All concurred.
¶10Order affirmed, with ten dollars costs and disbursements.