
    Gray v. Seeber.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    Limitation of Actions—Running of Statute.
    Code Civil Froc. N. Y. § 876, provides that a final decree or judgment for a sum of money rendered in a court of record is presumed to be satisfied after the expiration of 20 years from the date when the party recovering it was first entitled to a mandate to enforce it. Section 378 provides that a person may avail himself of the presumption created by section 376, under an allegation that the action was not commenced within the time therein limited. Section 888 provides that an action, the limitation of which is not specifically prescribed in this or the last title, must be commenced within 10 years from the time the cause of action accrues. Held, that a limitation of 20 years to actions on judgments is specifically provided by section 376, and that section 388 does not apply to such actions.
    Appeal from Otsego county court.
    MartinS. Gray, having procured the assignment of a judgment rendered against James Seeber, in the supreme court, November 17, 1873, commenced this action to recover on said judgment March 4,1887. The defense was that .the action was barred by the statute of limitation. The case was heard by the court without a jury, and, judgment being rendered for plaintiff, defendant appeals. For concurring opinion of Hardin, F. J., see post, 917.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Ediak <& Smith, for appellant. Barnum Bros., for respondent.
   Martin, J.

The only question involved on this appeal is whether an action upon a judgment for a sum of money, rendered in a court of record, may be maintained if brought within 20 years from the time the party recovering it was entitled to a mandate to enforce it, or whether it must be commenced within 10 years. The appellant contends that section 376 of the Code of Civil Procedure does not prescribe a limitation in actions upon such judgments, and hence the 10-years limitation provided for by section 388 is made applicable to such an action. Section 376 provides that such a judgment is presumed to be paid and satisfied after the expiration of 20 years, and that such presumption is conclusive, except in cases of part payment, or written acknowledgment of the amount, or some part thereof, by the person sought to be charged. Thus the question presented is whether section 376 is to be regarded as a statute of limitation specially applicable to actions on such judgments within the intent and meaning of section 388. The chapter in which these sections are found is entitled “Limitation of the time of enforcing a civil remedy,” and section 378 provides that a party seeking to avail himself of the provisions of section 376 may allege that such' action was not commenced within 20 years, the time therein limited. ' When this whole statute is examined, and its language and purpose considered, it becomes quite manifest that the legislature regarded section 376 as prescribing a special limitation in actions upon such judgments. It is said there is a clear distinction between a presumption of payment and a statute of limitation. As an abstract proposition, that statement may perhaps be correct. It is doubtless true that there may be presumptions of payment which are not statutes of limitation, but it does not follow that a presumption of payment created by statute may not constitute a statutory limitation of the time within which an action can be maintained. That a statute like the one under consideration, which creates an artificial and conclusive presumption of the payment and satisfaction of a debt, is in effect a statute of limitation, cannot, we think, be successfully denied. A statute which declares that a judgment shall be conclusively presumed to be paid and satisfied after the expiration of 20 years as effectually bars the remedy to enforce it, and as absolutely limits the time within which a recovery may be had thereon, as would a statute which provided that no action could be maintained thereon unless brought within that time. Moreover, such statutes have always been regarded as statutes of limitation. In Morey v. Trust Co., 14 N. Y. 308, Judge Weight, in speaking -of a similar statute, says: “It is in effect a statute of limitations merely;” and lie repeated the same statement in Lawrence v. Ball, Id. 480. In Johnson v. Railroad Co., 54 N. Y. 427, it was said that the statute of limitations was “entirely like the statute giving the presumption of payment in respect to a sealed obligation after 20 years. ” In Fisher v. Mayor, etc., 67 N. Y. 79, Judge Andrews speaks of such a statute as a statute of limitation. In Dieffenbach v. Roch, 20 N. E. Rep. 560, Judge Earl refers to section 376 as a .statute of limitation. Without multiplying instances where this and similar statutes have been spoken of and treated as statutes of limitation, we think it may be safely said that the general, if not universal, understanding of the profession, as well as of laymen, is, and has been, that such a statute is a statute of limitation, and is generally spoken of and designated as such. We can perceive no good reason for holding otherwise than that a limitation of 20 years in actions on judgments of the character therein mentioned is specially prescribed by section 376, and that section 388 does not apply to such an action. It was so held in Brush v. Hoar, 14 Civ. Proc. R. 297, and we .see no reason why we should not follow the authority of that case. As the correctness of the decision of the trial court is challenged only on the ground that the plaintiff’s judgment was barred by the 10-years statute of limitation, it follows that the judgment should be affirmed. Judgment affirmed, with costs. All concur.  