Collins v. Jewell

SEDGWICK, J.

The cause of action stated in the complaint has survived the death of the plaintiff. It is not an equitable action. It is one at common law. Whether motions of this kind must be granted rests in the discretion of the court, when certain facts are shown. The facts of this case do not justify the denial of the motion. That the cause of action may seem uhmeritori<>us is not of weight on the motion. That is to be determined by a trial. That the action has been for many years delayed to the time of death of plaintiff, on the 7th January, 1892, cannot be considered. The defendant could, if the delay were not justified, have procured a dismissal of the action. No effects from this delay could reach the executor. The delay of the executor is not great, and has not been shown to be injurious to defendant. This being the case, I do not think the application should have been denied, except upon condition of security for costs. No reasons having been shown why the executor should not be allowed to continue the action, a condition of his doing so should not have been imposed.

Order reversed, and motion below granted, with costs of appeals.