Christophers v. Garr (6 N.Y. 61, 1851)

*Jewett, J.

(after stating the facts.) — The single -* question submitted by the parties for the determination of the court below was, whether the plaintiff’s cause of action upon the note in question, was or not barred by the statute of limitations; that court held that it was not. The note became payable, including the days of grace, on the 5th day of February 1837, and Mitchell being then a resident of New York, the statute began to run.

This is one of the actions which the statute (2 B. S. 295, § 18) provides, as a general rule, shall be commenced within six years next after the cause of such action accrued, and not after. To this rule there are several exceptions made by §§ 24, 25, 26, 27 and 28, of the same statute. The last clause of § 27 provides, that if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.

As Mitchell was within the state, at and after the time when the action accrued on the note, the running of the statute against the action commenced at that time; his departure from the state, and his- residence out of it, operated as a suspension during his absence; but that terminated with his death. When the statute begins to run, it is a general rule, that no subsequent disability stops it; the death of the party is not an exception. (Wenman v. Mohawk Insurance Co., 13 Wend. 267, and the cases there cited.)

At the death of Mitchell, the statute had not yet run, and therefore, 2 R S. 448, § 8, applies, to extend the statute eighteen months after his death, in addition to such part of the six years as remained unexpired at that time; which carried the period of limitation to February in the year 1845. The action not being brought until March 1850, it came too late by more than five years. It might have been brought immediately *after letters of administration were granted in r * June 1844. If the delay works a loss to the *- plaintiff, it is chargeable to his own neglect, in not taking care to commence his suit in time to have avoided it.

The case of Benjamin v. De Groot (1 Denio 151) is supposed by the plaintiff’s counsel to be an authority to sustain this suit; but it may be seen, that that case presents a distinction which is not to be found in this, namely, that there the statute had not begun to run against the debtor, during his lifetime.

I am of opinion, that the action was barred by the statute, at the time it was commenced, and that the judgment of the court below is, consequently, erroneous, and should be reversed.

Foot, J.

— This case turns on the true construction of the last clause of the 27th section of our revised statutes “ of the time of commencing actions.” (2 R. S. 297.)

When the action accrued, the debtor was within this state; and, of course, the statute began to run. The appellant afterwards took out letters of administration on his estate. If the whole time, from the departure of the debtor from the state until the letters were taken out, is deducted, the suit is commenced in season; but if only the time from his departure to his death is deducted, the suit is not in season.

The first clause of this section of the statute has received a judicial interpretation in the case of Benjamin v. De Groot (1 Denio 155). That clause expressly provides, that if the debtor is out of the state, when the cause of action accrues, “ such action may be commenced within the times herein respectively limited, after the return of such person into the state.” Hence, if he does not return into the state, and dies abroad, the statute cannot commence running, until after representatives of his estate have been appointed; and so the court held in the case cited. But the provision of the statute, contained in the second clause, and which provides for the case of a debtor being within the state when the action accrues, is very different. In that case, the statutory .. direction is, if “ such person shall depart 'from, J and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” It appears to me, that the true meaning of this provision is, that the time to be deducted is only that which accrues while the party resides out of the state; during that time, no process can be served upon him. As soon as his death occurs, whether out of or in the state, measures may be taken to settle his estate and collect debts against it. If the statute had begun to run, and the debtor had died in the state, it would continue to run; and the creditor would have the benefit of only the eighteen months given him by the statute. (2 R. S. 448, § 8.)

Again, this § 8 applies to this case. Its language is, “ the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of actions against his executors or administrators,” &c. No reference is had to the place of death; whenever the debtor dies, these eighteen months are given to set forward proceedings to collect his demand. On the whole, my r/pinion is, "that the statute is a bar to the present suit.

Judgment reversed.