
    LYNCH v. LYNCH.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Conversion of Decedent’s Personalty—Action by Heir—Complaint.
    Code Civ. Proc. § 392, declares that for the purpose of computing the time within which an action must be commenced by an executor or administrator to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration, or to recover damages for taking personal property within the same period, the letters are deemed to have been issued within 6 years . after the death of the testator or intestate; but that, where an action is barred by this section, any of the next of kin, legatees, or creditors who, at the time »f the transaction on which it might have been founded, was within the age of 21 years, or under certain other disabilities, may, within 5 years after the cessation of the disability, maintain an action to recover damages by reason thereof, in which he may recover such sum as he would have received on final distribution of the estate, had an action been seasonably commenced by the executor or administrator. Held, that the complaint in an action thereunder by a child of deceased not of age when the property was taken, begun within 5 years after coming of age, and after an action by an executor or administrator would be barred, need not negative the fact that deceased died testate or intestate, or that letters testamentary or of administration were issued, or that an action was brought by an executor or administrator; there being no presumption in favor of any of these facts, and they being matters of defense, to be pleaded by defendant.
    Appeal from special term, Kings county.
    Action by Edward B. Lynch against George W. Lynch. From a judgment overruling a demurrer to the complaint, defendant appeals.
    Affirmed.
    Argued before BLOWN, P. J., and DYKMAN and PLATT, JJ.
    W. Wickham Smith, for appellant.
    Horace Graves, for respondent.
   DYKMAN, J.

This is an appeal from a judgment overruling a demurrer to the plaintiff’s complaint, which contained the following allegations, in substance: Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff is one and the defendant is another. The plaintiff was five years old at the time of his mother’s death, who at that time was the owner of a market stand, stocks, and household furniture. The defendant converted this property to his own use more than six years before the commencement of. this action, and the plaintiff learned of such conversion one year before he brought his suit, and demanded his share of the property. His demand was refused. The plaintiff now claims possession of his share of the property, or for an accounting. The defendant demurred to the complaint on the ground—First, that it stated no cause of action; second, that there was a misjoinder of causes, plaintiff having sued both in trover and for an accounting. The action is based upon section 392 of the Code of Oivil Procedure, which reads as follows:

“For the purpose of computing the time, within which an action must be commenced in a court of the state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the said period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of 21 years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator.”

The cause of action set up by the plaintiff in this suit falls within the second subdivision of the foregoing section. The plaintiff is within its provision, for the reason that an action for the recovery of the property owned by the mother was barred by this section, and the plaintiff, at the time of the transaction upon which the action might have been founded, was within the age of 21 years. Moreover, this suit was commenced within 5 years after the cessation of such disability. The children of Sophia Lynch succeeded to the property which she owned at the time of her death by right of succession as her heirs at law. There is no legal presumption that the mother died testate or intestate, or that letters testamentary or of administration were, ever issued upon her estate, and it was therefore unnecessary to negative either of those facts by any allegation in the plaintiff’s complaint. Neither is there any presumption that a suit was brought within 6 years after the death of the party by the executor or administrator. It appears from the complaint that the plaintiff became 21 years of age in 1892. Under the provisions of the section quoted, he had then 5 years in which to bring this suit. Under our construction of the section quoted, it was entirely unnecessary to state whether the plaintiff died testate or intestate, or whether any executors or administrators of her property or estate were appointed, or whether any action was commenced by them in respect to the cause of action stated in the complaint; but such facts, if they existed, are matters of defense to the action, and must be so alleged by the defendant in his defense. The judgment should be affirmed, with costs. All concur.  