Statement of case. In the case first mentioned, the act enables a tax to be imposed and collected upon the ulterior devisees, through the medium of a bond to be given by the respective legatees, payable when they come into the possession of the devised property. (2 chap. 483, Laws of 1885.) In the latter case, however, there is no basis upon which the value of the devise can be appraised, and no foundation for the imposition of any tax and the provision for the giving of a conditional bond is, therefore, wholly inapplicable. Whether an appraisal of the value of these devises, for the purpose of taxation, may be made when they eventually come. to the possession of the devisees, we are not called upon now to determine. It may be that the tax will be altogether lost to the state if an appraisal is not now allowed; but if so, the fault lies in the act itself and not in the construction which its language requires to be put upon it. The order of the General Term should, therefore, be affirmed. Order affirmed. JAMES E. LYON, Appellant, v. TRENOR W. PARK et al., The remedy against a foreign administrator, in his representative character, It seems that where a cause of action survives, the plaintiff upon the death Statement of case. visions subsequent to the one above referred to (§§ 757, 758, 759), unless laches is a sufficient answer to his motion. This action was commenced in 1877 to recover damages for alleged fraud and conspiracy. In 1878, on application of defendants and on the ground that plaintiff was a non-resident, an order was made requiring him to file security for costs within sixty days after service of order, and until this was done, staying all proceedings on his part, except to move to vacate the order. The order was duly served but plaintiff did not comply therewith. Defendant P. died in 1882 and defendant B. in 1884. In June, 1886, the plaintiff moved to revive and continue the action against the personal representatives of said defendants and to be relieved from his default and failure to file a bond. It was shown in opposition that said defendants were material witnesses for the defense, and that numerous other important witnesses had died since the stay of proceedings, by reason of which the defense would be greatly prejudiced. Held, that the motion was properly denied for laches. B. was at his death a resident of the state of Vermont. Letters of administration on his estate were issued in that state, but no letters ancillary or original have been issued in this state. Held, that, conceding the provision of said Code (757), requiring the court on motion to allow or compel an action to be continued in case of the death of a sole plaintiff or sole defendant, precluded the court from denying such a motion (as to which, quære), it had no application here, as defendant P. was not sole defendant, and B., who upon the death of P. became sole defendant, was alone within that provision, and over his administrator the court had no jurisdiction. (Submitted October 16, 1888; decided November 27, 1888.) APPEAL from order of the General Term of the Superior Court of the city of New York, made December 12, 1887, which affirmed an order of Special Term denying a motion on the part of plaintiff, the nature of which, as well as the material facts, are stated in the opinion. (Reported below, 23 J. & S. 539.) Ewing & Southard, O. W. Campbell and V. Wright Kingsley for appellant. This action is continued by force and effect of section 755 of the Code of Civil Procedure, which says: “An' action does not abate by any event if the cause of action survives or continues." (R. S., part 3, chap. 8, title 3, art. 1, §§ 1 and 2; 3 R. S. [Banks' Bros. 7th ed.] 2394; Bond v. Smith, 4 Hun, 48; 35 N. Y. Supr. Ct. 196; 19 N. Y. 464; 27 id, 633; 75 id. 192; Randall v. Sackett, 77 id. 480; Jarvis v. Statement of case. Felds, 14 Abb. 46; Risley v. Brown, 67 N. Y. 160; Hauck v. Crayhead, Id. 432; Heinmiller v. Gray, 35 Supr. Ct. 196; People v. Starkweather, 40 id. 453.) If section 755 is insufficient, authority to the court to proceed with this action is found in sections 757 or 762, and under 2 Revised Statutes 386, 477, sections 1 and 2. (Holmes v. Cooley, 31 N. Y. 289; Chase v. N. Y. C. R. R. Co., 26 id. 523.) The claim of defendants' counsel that section 757 only gives relief where there is a sole plaintiff or sole defendant, is untenable. (Coit v. Campbell, 82 N. Y. 516; Greene v. Martine, 84 id. 648; Holsman v. St. John, 90 id. 465.) A mere nominal party not served, and over whom the court has not judicial control, is not a party to an action, and hence section 758 of the Code is inapplicable to this case. (East River Bk. v. Cutting, 1 Bosw. 636; Wood v. Fingernail, 1 Robt. [Sup. Ct. Rep.] 487.) The power of the court to proceed with this action is expressly given in Revised Statutes, part 3, chapter 8, title 3, section 1 (Banks' 7th ed.) 2394. (People v. Starkweather, 40 N. Y. Supr. Ct. 460.) The court has no discretion to refuse the order to bring in the representatives of deceased defendants. (Coit v Campbell, 82 N. Y. 509; Greene v. Martine, 84 id. 648; Holsman v. St. John, 90 id. 461; Evans v. Cleveland, 72 id. 486.) Under the law this action continues to be maintainable against the successors of Park & Baxter by section 757 of the Code (19 N. Y. 471; 25 How. Pr. 286.) If an action at law is commenced before the statute of limitations runs, there can be no laches interposed thereafter as a defense, and that is this case. (Evans v. Campbell, 72 N. Y. 436; Coit v. Campbell 82 id. 510; Holsman v. St. John, 90 id. 136; Greene v. Martine, 21 Hun, 136.) The mere default. of plaintiff in giving the bond for costs under the former order of the court does not take away the imperative character of the motion, or otherwise prejudicially affect this application for continuance.. Joseph H. Choate and Frederic B. Jennings for respondents. The order was one resting in discretion and cannot be reviewed here unless the court shall hold that the court below was bound Statement of case. to grant the motion, and had no discretion whatever in the matter. (Civil Code, § 190, subd. 2; Getty v. Spaulding, 58 N. Y. 636; Cushman v. Brundelt, 50 id. 296; Medbury v. Swan, 46 id. 203; Thorington v. Merick, 101 id. 9; Coit v. Campbell, 82 id. 517.) The very fact that the Code requires an application to the court for leave to revive and continue the action, and does not permit it to be done, as a matter of course, by simply filing a supplemental complaint or entering a formal order without notice, further sustains the view that discretion, as to granting the order, is reposed in the judge. (Medbury v. Swan, 46 N. Y. 202.) The court below could, in its discretion, deny the motion. (Beach v. Reynolds, 53 N. Y. 3; Evans v. Cleveland, 72 id. 488; Getty v. Spaulding, 58 id. 636.) The plaintiff having wholly failed to comply with the positive order of the court to file security within sixty days, no longer has any standing in court, and, if the cause was revived, the defendants would be entitled to judgment dismissing the complaint. (Code of Civ. Pro. § 3277; Hinds v. Woodbury, 29 How. Pr. 381; Lewis v. Lewis, 13 Abb. N. C. 182, note.) If the action should be revived, the complaint would be dismissed for the plaintiff's unreasonable neglect to proceed in the action. (Code, § 822; Ellsworth v. Brown, 16 Hun, 1; James v. Shea, 28 id. 76.) The representatives of Park and Baxter could not have revived the suit even for the purpose of moving for judgment under section 3277 or of obtaining a dismissal of the complaint under section 822, to which they were entitled, as before shown. Nor could it be revived by the plaintiff. (Beach v. Reynolds, 53 N. Y. 8; Livermore v. Bainbridge, 49 id. 127; Coit v. Campbell, 82 id. 516.) If Baxter can be treated as a sole defendant after the death of Park, the case cannot be revived against his representatives for the reason that their appointment is shown by the moving papers to have been made in Vermont. That appointment has no extra territorial efficacy: (Schouler on Exrs. § 173 and note 5; Story on Conflict of Laws, § 513, note 3, 657.) SICKELS-VOL. LXVI. 45 Opinion of the Court, per ANDREWS, J. ANDREWS J. The plaintiff, in August, 1886, made this motion to revive and continue the action against the representatives of the estate of the original defendants Park and Baxter, both of whom have died since its commencement, and also to be released from his default and failure to file a bond as security for costs, as required by order of the court made June 11, 1878, and that he be permitted to comply with that order. The motion was denied by the Special Term as to the representatives of Park, for laches, and dismissed as to the representatives of Baxter on the ground that no adminstration had ever been granted on his estate in this state. The General Term affirmed the order of the Special Term and the plaintiff appeals to this court. The action was commenced by the service of a summons on Park and Baxter in June, 1877. One Stewart was named therein as a co-defendant, but was never served with process and has not appeared in the action. The complaint sets out a cause of action for fraud and conspiracy, by means of which, as is alleged, the defendants induced the plaintiff, in 1871, to transfer to the defendant Park, for the benefit of himself and his co-defendants, a valuable contract entered into between the plaintiff and the "Emma Silver Mining Company," by which, in a certain contingency, the plaintiff was to have a large interest in the proceeds of the sale of the stock of the company. The order of June 11, 1878, was made on the application of Park and Baxter, on the ground that the plaintiff was a non-resident of this state, and the order required him to file a bond in the penalty of $2,000, with sureties, within sixty days after service of a copy of the order, as security for costs, to the defendants, Park and Baxter, and meanwhile stayed all proceedings on his part in the action, except to move to vacate the order, until the bond should be given and the sureties, if excepted to, should justify. The order was duly served on the same day, and was the last proceeding in the action until the making of this motion June 22, 1886. The plaintiff has never complied with the order. Park died December 13, 1882, and Baxter, February 17, 1884. Ancillary letters of administration on the estate of Park were |