author: By the Court.—Sedgwick, Ch. J. Horace Russell, J.

text:
    JOHN M. GREENE, as Executor, &c., v. THE NEW YORK CENTRAL & HUDSON RIVER R. R. CO.

      Executors, etc.—limitation of actions by.—Statutory repeal.—Code Civil Procedure, §§ 402, 414.—3 B. S. 6th ed. 733.
    The provision of the Revised Statutes that “ the time which shall have elapsed between the death of any person and the granting of letters testamentary on his estate, not exceeding,” etc., . . “shall not be deemed any part of the time limited by law for the commencement of actions by executors (3 B. S. 6th ed. 733, § 9), was superseded by the provisions of the Code of Civil Procedure, irrespective of the operation of the repealing act, and section 402 of said Code furnishes the only rule of limitation in that regard. Russell, J., dissenting.
    Section 413 of the Code of Civil Procedure provides that the provisions of the chapter containing it and section 402, shall constitute the only rules of limitation applicable to civil actions, “except in the following cases: 1. A case where a different limitation is specially prescribed bylaw.” A case or prescription to fall within the above exception must be “ special” as to the Code, and not provided for therein, and in determining whether such case or prescription contained in another statute is special, the provisions describing limitation of time must be eliminated, and if the case so viewed be provided for in the Code the provision of the statute relating to the same case will not apply, though such provisions are not inconsistent with each other.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided November 6, 1882.
    Exceptions by plaintiff, ordered to be heard in first instance at general term;
    The action was for injuries to real estate, owned by testatrix and alleged to have been- done in her lifetime.
    Among other defenses the answer set up the statute of limitations. The question was whether, under the Code of Civil Procedure, section 9, article 1, title 3, chapter 8 of part 3 of the Revised Statutes (2 Edm. 467 ; 3 Banks' 6 Ed. 733), continued in existence, as to actions by executors. The plaintiff claimed that it did.

    On defendant’s motion the court dismissed the complaint, ordering the exceptions to be heard in first instance at general term.
    See also statement of facts in the opinion of Russell, J.

      A. J. Vanderpoel and J. B. Miller, for plaintiff.
    The time within which an executor may bring an action has been extended, by two statutes, beyond six years. (a.) In all cases, the time which may elapse between the death of the testator and the appointment of the executor, not exceeding six months, together with the six months next succeeding his appointment, is not deemed part of the time within an executor must bring an action (3 R. S. 449, § 9). (5.) Where the cause of action accrued to the testator more than five years before his death, so that the right of action would expire within one year after his death, the time for the executor to bring action is extended absolutely to one year after the death (Code Civ. Pro. § 402).
    This is evidently intended to provide for the special case where an executor is appointed within less than six months after the testator’s death, and to give to the executor, in such a case, at least one year’s time from the testator’s death to collect all claims of the-testator, including claims which accrued more than five years before the testator’s death, and which might, otherwise be barred within six months after his appointment, under the last cited provision of the Revised Statutes.

      There is nothing inconsistent in the provision of the Code and of the Revised Statutes: the Code merely gives an extension of time, additional to what is given by the Revised Statutes, in certain cases, so that executors may have at least one year in which to bring suits on all claims of the deceased
    Section 402 of the Code cannot have repealed section 9 of 3 Rev. Stat. 448, because the Code (§ 414) provides that statutes giving different periods of limitation, are not affected by the provisions of the. Code. Section 402 of the Code of Civil Procedure is substantially the same as the first part of § 102 of the Old Code of Procedure, which was in force when the following case was decided : Coddington v. Carnly (2 Hilt. 531), which holds that the provision of the Revised Statutes was then in force.
    The second part of section 102 of the old Code provides for a similar extension of time, in actions against executors, which would expire within one year after the appointment of the executor, and this has been repeatedly construed not to affect in any way 3 Rev Stat. 448, § 8, which gives an extension of eighteen months’ time for all actions brought against executors (Scovil v. Scovil, 45 Barb. 517 ; Bucklin v. Ford, 5 Id. 393; Parker v. Jackson, 16 Id. 33).
    If this motion for a new trial is denied, the court must hold that executors may bring actions only within one year after the death of the testator, and only then for causes of action which arose at least five years before testator’s death. All other actions brought by executors, since the enactment of section 102 of the old Code in 1849 must have been illegal. In no reported case has the continuance of § 9 of 3 Rev. Stat. 448, been questioned.

      Henry H. Anderson and Frank Loomis, for defendant.

       Said section 9 of the Revised Statutes was repealed by the repealing act which went into effect September 1, 1880 ; but this action,, having been brought on August 13, 1880, was not affected by said act.

   By the Court.—Sedgwick, Ch. J.

This action was begun after the Code of Civil Procedure had taken effect. The appellant relies upon a section of the Revised Statutes, as containing a rule of limitation which should be applied to the action. Section 9, article 1, title 3, chapter 8, part 3 of the Revised Statutes (2 Edm. 497), is in these words: “The time which shall have elapsed between the death of any person and the granting of letters testamentary on his estate, not exceeding six months, and the period of six months after the granting of such letters, shall not be deemed any part of the time limited by the law for the commencement of actions by executors.” If the position is right, then the exception taken below should be sustained.

If, however, section 402 of the Code of Civil Procedure is the only rule to be applied the exception is to be overruled. Section 402, Code of Civil Procedure, is : “ If a person entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative, after the expiration of that time and within one year after his death.”

The general intent of the Code of Civil Procedure on the subject of continuing the former statutes of limitation is contained in section 414 of that Code. By subdivision 2 of that section, it is enacted, that the provisions of the Code shall not apply to a cause of action which accrued before July 1, 1848, and that the statutes then in force govern with respect to such a cause of action; subdivision 3 enacts, that such provisions do not apply to a case not included in subdivision 2, in which a person having a cause of action when the Code takes effect, commences the action before the expiration of two years after that Code takes effect, and that in such case, the provisions of law applicable thereto immediately before the act takes effect, continue to be so applicable notwithstanding the repeal thereof. Neither of these subdivisions countenances the plaintiff in resorting to the Revised Statutes in order to maintain the action.

The first part of section 414 of the Code explicitly declares that the provisions of this chapter apply to, and constitute the only rules of limitation applicable to civil actions, except “ in the following cases : 1. A case where a different limitation is specially prescribed by law,” etc. The subdivisions 2 and 3 have been stated. Subdivision 4 and last is, a “ case where the time to commence an action hás expired,” when this act takes effect. The appellant must, therefore, find in the first subdivision, the right to bring the action under the limitation of the Revised Statutes.

The subdivision 1 referred to, is the substitute or representative of a part of section 74 of the Code of Procedure, which is as follows: " Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute,” etc.

Why the words were changed so that the word “specially” was attached to “prescribed by law,” instead of the word “special” being attached to cases, would probably have to be answered by a guess. It is clear that the general purpose in both Codes was to embody the principle of an already existing rule of law, that a general statute, made with reference to general conditions, does not repeal a former statute, made with reference to the particular characteristics of a particular case, although the classification of the general statute might include the particular case, as a matter of general description (The Evergreens, 47 N. Y. 216; Exp. Comm. of Central Park, 50 Id. 493 ; Gloversville v. Howell Canal, 70 Id. 287; 7 Hun, 345; Exp. Delaware & Hudson Canal Co., 69 N. Y. 209).

It is to be observed that the prescriptions of all statutes are so limited to the cases that the statutes describe, that to call them special prescriptions would indicate nothing, unless it should be ascertained in what sense the cases were special. In the statute under view, it will, no doubt, be granted that the case or the prescription is to be found as special in a relative sense, that is, special as to the Code. If the Code has made a provision in reference to any case referred to in the Revised Statutes, the case in the Revised Statutes is not a special case.

It is to be further observed that whether or not a case is within subdivision 1, is not determined by the fact alone that another statute attaches to a case described by it a different limitation from that attached to the same case by the Code of Civil Procedure. If this were not so, the result would be that the Code would be construed to mean that when, in a particular case, the Code had made a certain limitation, and the Revised Statutes, in respect of the identical case, had made a different limitation, the Code should not apply. Therefore, in examining whether the Revised Statutes govern in this action, the case it provides for must be ascertained without considering, as a part of the elements of the case, the time of limitation specified. In the Revised Statutes, the case and the limitations are as follows. In general an action of this kind was to be brought within six years, by the party injured. If the party died, the time which should elapse between the death and the granting of letters testamentary, etc., not to exceed six months, and thé period of six months thereafter, was not to be computed as a part of the time limited bylaw for the commencement of actions by executors (§ 9, art. 1, tit. 3, chap. 8, pt. 3, R. S. 2 Edmonds, 467). There was also in the Revised Statutes (§ 24, ch. 4, pt. 3, R. S.) a provision like that of section 406, Code Civil Procedure, that if a person entitled to maintain an action dies before the expiration of the time limited for its commencement, the cause of action surviving, an action may be commenced by his representative, after the expiration of that time and within one year after his death.

Leaving aside such of these provisions as describe limitation of time, the case provided for is simply the case of an executor or administrator having a cause of action formerly belonging to the deceased, the cause of action surviving.

It has been argued that section 402, Code Civil Procedure, describes one class of cases and actions, and sections 9 of the Revised Statutes, as last referred to, describes another class ; that the former refers to the rights of action which would expire within one year after the testator’s death, and section 9 to all cases where causes of action had survived, whether or not the period of limitation would expire within one year from the death. But such a classification is reached by making it with reference to the time of limitations described in the two statutes, and the consequences. We have considered, however, that in ascertaining the character of the cases, within the intent of the Code of Civil Procedure, we must first eliminate the time of limitation. The time during which a cause of action or a case has existed is no part of and is extrinsic to the cause of action or the case.

Section 402, Code Civil Procedure, examined in the same way, discloses that the class of cases for which it prescribes a limitation is the same as that described in the provisions of the Revised Statutes, that have been referred to ; that is, of a cause of action formerly belonging to a deceased person in the possession of his representative.

I have, therefore, come to the conclusion that the section of the Revised Statutes on which the appellant relies, does not present, within subdivision 1 of section 414, Code Civil Procedure, a case where a different limitation is specially prescribed by law ; but that it presents the same case that section 402 of the Code presents, and therefore, that the latter contains the only rule of limitation applicable to this action.,

This line of argument has been used to avoid the special consideration of those decisions that were made in respect of certain provisions in the Code of Procedure that related to the limitations of actions. Those provisions were in many respects like such as exist in this action, but there were vital differences in other respects. Let it be assumed that the same reasoning was to be applied under the Code of Procedure, to actions by executors as to actions against executors. The test of the continued existence of the provisions of the Revised Statutes on this subject after the Code of Procedure was passed, was whether the former was consistent with the latter. If they were consistent, they were a part of the Code. In passing it may be said that the discussions in the opinions imply that these provisions of the Revised Statutes refer to the same cases that section 102 of the Code of Procedure refers to. The question, under the present Code, as we said, is, do these provisions of the Revised Statutes make a case where a different limitation is specially prescribed ? It has been here held that the Revised Statutes refer to the same case as is referred to by section 402 of the present Code, and therefore, that the former does not specially prescribe a different limitation. And the result is that, though the provisions of the'Revised Statutes are consistent with the Code of Civil Procedure, yet the latter contains the only rules to be applied.

It has been argued that because the case of a cause of action surviving a person provided for in the Revised Statutes under chapters, part 3, was entitled of “proceedings in special cases,” it continued tobe a special case, under subdivision 1 of section 414 of the present Code. I think that this does not give due effect to a suggestion that has been made, which was that in statutes like these the word “special” has a relative meaning and is to be taken as special in the aspect of the provisions of the act in which it is used. Under the Revised Statutes the case of the time within which actions might be brought by executors and the other provisions that accompanied it, were in fact special as to the more general provisions that had been made as to causes of actions, although such general provisions had intermixed with them special provisions which apply to executors. But under the present Code, the provisions as to causes of action generally, and then as to actions upon them by executors particularly, precede, and afterwards subdivision 1 of section 414 refers to a case that should be special as to such general and special provisions.

Again, it does not seem that the course of decisions under the Code of Procedure that the position of the Revised Statutes under consideration was not repealed, taken together with section 74 of that Code, which enacted that “when in special cases a different limitation is prescribed by statute,” it should be applied, would justify a conclusion that the portion of the Revised Statutes referred to included a special case, within the meaning of the present Code. If th.e course of decisions was as it is claimed, the Revised Statutes were not continued in force, because they related to a special case, but because they were not repealed by implication, and were therefore specifically kept alive by that Code. And the special case referred to by section 74 would mean some other case than that provided for by the unrepealed part of the Revised Statutes on the subject.

The method in which section 403 of the Code of Civil Procedure was made up, suggests that there -was a specific intent not to leave in existence section 9 of the Revised Statutes in question. Section 402, Code Civil Procedure, embodies the substance of section 8 of the Revised Statutes that referred to actions against executors. If it were meant to continue the substance of section 9 Revised Statutes in section 402 of the Code of Civil Procedure, section 403 would indicate that the subject was present and the omission was intentional.

After the best consideration, I can give to the matter, I am of opinion that the exceptions should be overruled and judgment ordered for defendant, with costs.

Freedman, J., concurred.

Horace Russell, J.

[Dissenting.]—The action was for a private nuisance; for an injury to premises belonging to the plaintiff’s testatrix, on the corner of Laight and Hudson streets, by reason of the obstruction, by the defendant, of the street and public park in front thereof. One of the defenses was the statute of limitations. The testatrix died May 29, 1874. The plaintiff was appointed executor August 12, 1874. The summons in this action was served August '21, 1880. The complaint was dismissed on the ground that the action was barred by the statute.

The complaint in form alleged a cause of action accruing in the testatrix’s life-time, for an injury to property, which would be barred in six years, by subdivision 3 of section 382 of the Code; and it was dismissed because the cause of action did not accrue within that time.

The appellant contends that section 9 of article 1, of title 3, of chapter 8, of part 3, of the Revised Statutes, (2 Edm. 467 ; 3 Banks' 6th ed. 733), which is as follows : “ The time which shall have elapsed between the death of any person and the granting of letters testamentary, or of administration, on his estate, not exceeding six months, and the period of six months after the granting of such letters, shall not be deemed any part of the time limited, by the law, for the commencement of actions by executors or administrators, ’ ’ applies to this case ; and that, therefore, the time from May 29, when the testatrix died, to August 12, when the plaintiff was appointed executor (nearly three months), and six months after the plaintiff’s appointment, ought to have been excluded in determining the length of time the statute had run ; and, so, that the action was brought nearly nine months before the statute had run out.

The respondent contends that the provision of the Revised Statutes, quoted, was repealed by implication by section 102 of the old Code of Procedure (of which § 402 of the new Code is a re-enactment), which is as follows : “If a person entitled to bring an action, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time, and within one year from his death.”

The decision of the case requires the determination of two questions : (1.) Was the provision of the Revised Statutes quoted alive and in force at the time the new Code. went into effect ? (2.) Has the provision been repealed, either directly or by implication, since the new Code went into effect, so far as relates to causes of action which accrued before that time ?

1. The provision of the Revised Statutes was not expressly repealed by the Code of 1848. Section 73 of the Code, as originally enacted, repealed the provisions of the Revised Statutes, “ Of actions and the times of commencing them” (ch. 1 ; tit. 2, of ch. 4, of tit. 2, pc. 3, 2 Edm. 303); but section 9, above quoted, was not included within that chapter, but within the chapter relating to “suits by and against executors ”(2 Edm. 467). And while section 74 of the old Code, provides that “ civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued,” it expressly excepts “ where in special cases a different limitation is prescribed by statute.”

By section 71 of the old Code (being section 390 of 1848), it was provided ... 2. This act shall not affect . . . any existing statutory provisions relating to actions, not inconsistent with this act, and in substance applicable to the actions hereby provided, nor any proceedings provided for by . . . chapter 8 of the third part of the Revised Statutes, except that when in consequence of any such proceeding, a civil action shall be brought, such action shall be conducted in conformity to this act; and, except, also, that where any- particular provision of the titles and chapters enumerated in this section, shall be plainly inconsistent with this act, such provision shall be deemed repealed.”

That part of section 102, of the old Code, above quoted, was a re-enactment and in the same words of section 26, of chapter four, of part three, of the Revised Statutes.

That section and section 9, of chapter 8, of part 3, were both in the Revised Statutes of 1828. Both will be found in all editions of the Revised Statutes from 1828, until the enactment of the Code, when its provisions were substituted for those of chapter 4. The coexistence of these provisions would seem to indicate that the Revisers did not regard them as inconsistent; certainly not so much as that the re-enactment of the one would operate by implication to repeal the other.

Chapter 8, part 3, of the Revised Statutes, is entitled “of proceedings in special cases,” and therefore might well be considered to be included in the exception mentioned in section 74, of the old Code, “where in special cases a different limitation is prescribed by statute.”

In all the cases which I have seen, decided after the Code of 1848 went into operation, it was either directly-held, or assumed, that the provisions of chapter 8, of part 3 of the Revised Statutes, relating to “ suits by and against executors, ’’were still in. force, notwithstanding the Code made a different provision on the same subject (Coddington v. Carnley, 2 Hilt. 528; Bucklin v. Ford, 5 Barb. 393; Parker v. Jackson, 16 Id. 33 ; Scovil v. Scovil, 45 Id. 517 ; Chenango Bridge Co. v. Lewis, 63 Id. 111, 117; Sanford v. Sanford, 62 N. Y. 553).

In the last case cited, the provisions of the Revised Statutes as to actions against executors (being section' 8, immediately preceding that in relation to actions by executors, now under discussion), reading as follows : “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,” was under consideration, and it was assumed that the provision was not repealed by section 102 of the Code; though the amendment of 1849 added to section 102 this provision : “If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executor or administrator after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” Judge Allen, writing the unanimous opinion of the court, assumed that the plaintiff was entitled to the benefit of the provisions of both the Revised - Statutes and the Code. He says: “ These provisions extend the time for bringing actions under peculiar circumstances for nearly two years and a half.” There certainly was as much reason for holding that the latter part of section 102 of the Code, repealed by implication section 8, of chapter 8, of part 3 of the Revised Statutes (2 R. S. 448), as for holding that the first part of section 102 repealed by implication section 9, of chapter 8, of part 3. It is undoubtedly true that section 102 of the old Code makes a different provision on the same subject. That is equally true as to part of the section added in 1849. The provision, however, only relates to cases where a person entitled to bring the action dies in the last year of the running of the statute of limitations, whereas, the provision of the Revised Statutes under consideration, relates to all cases where a person entitled to bring an action dies at any time before the statute has run out. It is not possible to conceive of a case to which both provisions could be practically applied. Whatever we might think if the question were a new one, the weight of authority is that at the time of the adoption of the new Code, the provision of the Revised Statutes under discussion had not been repealed directly or by implication.

2. Nor was that provision directly repealed by the new Code. It was repealed by the general repealing act (ch. 245 of 1880, sub. 3, of sec. 1). But the repealing act did not go into effect until September 1, 1880. This action was begun August 21,1880 ; and subdivision 1 of section 3, of the repealing act, provided that it “should not render ineffectual, or otherwise impair any proceeding in an action or special proceeding had or taken pursuant to law before the act took effect; ” and subdivision 2, that it “ should not affect any lawful act done or right, defense or limitation lawfully accrued or established before the act took effect.” And, so, it is clear that the general repealing act did not retroact so as to affect this case.

The repealing act was passed for the purpose of setting at rest all doubt as to what statutes were repealed bj^ implication by the new Code. But, while this was the purpose, it was not retractive in its effect, and •could not force a rule of interpretation which, without it, could not have obtained. Unless, then, the section of the Revised Statutes under consideration was repealed by implication by the provisions of the new 'Code, it was alive and in force at the time this action was begun, and the plaintiff was entitled to the benefit of its provisions. Section 102 of the old Code is reenacted in section 402, of the new, without the variation of a word.

Section 414, of the new Code, is: “ The provisions of this chapter apply and constitute the only rule of limitation applicable to a civil action or special proceeding, except in one of the following cases : (1) A case where a different limitation is specially prescribed by law. ...”

It will be observed that this language differs very little from that of section 74 of the old Code, that ‘ ‘ civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued,” except “ . . . where, in special cases, a •different limitation is prescribed by statute.”

' The provision of the new Code (§ 402) is, as I have said, identical with section 102 of the old Code. If it did not operate to repeal the provision of the Revised Statutes in question, by substituting a different rule on' the same subject, while it was a part of the old Code, it can scarcely be said that it has any greater effect in the new ; and the language of section 74, in the old Code, civil actions can only be commenced within the periods prescribed in this title,” is certainly as strong as the words, ‘‘ the provisions of this chapter apply and constitute the only limitation applicable," etc., in section 414, of the new Code. So the exception made by section 74, of the old Code, “ where, in special cases, a different limitation is specially prescribed by statute,” is so like the exception of section 414, of the new Code, a case where a different limitation is specially prescribed by law,” that I can see no reason why the rules of construction, which were uniformly adopted and applied to the old Code, should not be ‘-adopted and applied to the new.

Inasmuch as the Revised Statutes themselves entitle that part, wherein the provision under discussion is contained, “ Of proceedings in special cases,” it seems to me to require no straining to denominate the case at bar a special one, in which a limitation is prescribed or permitted different from that applicable to ordinary actions. Indeed, in his note to section 414, Mr. Throop mentions, as intended to be covered by the exception, certain cases which are no more entitled to the protection of the exception than the one now before us.

If this whole matter were entirely new, and a section like 402, of the new, and 102, of the old Code, were to be passed, I should be strongly inclined to hold that it operated to repeal, by implication, such a provision as that contained in the Revised Statutes, for, while the latter provision is in force, the provision of the Code is practically useless. But, in view of the history of the subject, and the uniform course of the decisions, I do not think we are at liberty to adopt that view when we remember the great repugnancy of the law to repeal by implication.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.