At the time of the decease of the sole plaintiff the action was pending. It was brought to foreclose a bond and mortgage. We are of the opinion that, under the provisions of section 757 of the Code of Civil Procedure, the executor of the deceased- was entitled to the order of continuance he applied for.
The delay in making the application should not have prevented the granting of this motion, especially in the - absence of any proof on the part of the defendant that his defense had been prejudiced thereby. (Greene v. Martine, 21 Hun, 136; 81 N. Y. 618; Holsman v. St. John, 90 id. 161.)
The fact that the deceased party had omitted to pay the costs awarded against him on his application to reopen the case was "not, under the provisions of section 779 of the Code of Civil Procedure, a ground for denying the application to continue the action. (Clute v. Emerich, 16 Civ. Proc. Rep. 123.)
The executor’s motion was not, we think, a p>roceeding m the action within the meaning of section 779 (supra). It was a motion to substitute a living for a deceased party, in order that proceedings i/n the action might be talten. If, after the substitution of the executor as a party plaintiff, he proposes to proceed, the defendant may properly raise the objection that lie should be stayed until the motion costs, if any are due, as to which we do not decide, áre paid.
We conclude that the order should be reversed and the motion granted, without prejudice to defendant’s right to take such action as he may be advised to, with ten dollars costs and disbursements of the appeal.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.