
    Peter R. Weiler, Resp’t, v. Gertrude J. Newbach, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    1. Infants—Real property—Actions to determine claims to land —Code Ciy. Pro., §§ 1638, 1686.
    It is provided by Code Civ. Pro., 1 1638, that where a person has been or he and those whose estate he has, have been for three years in the actual possession of real property, claiming it in fee or for life, or for a term of years not less than ten, he may maintain an action against any other person except a person who is when the action is commenced an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge, or in ■ execution upon conviction of a criminal offense to compel the determination of any claims adverse to that of the plaintiff which the defendant mikes to any estate in that property in fee or for life, or for a term of years not less than ten, in possession, reversion or remainder. But this section does not apply to a claim for dower. By § 1686, included under the same title it is piovided that any action specified in that title may be maintained by or against an infant in his own name, held, that § 1638 was an attempted codification with interpolations of the provisions of the Revised Statutes upon the sub’ect, and expressly prohibited commencing actions of this nature against infants.
    2. Statute—Construction of conflicting provisions—How legislative INTENT TO BE GATHERED.
    
      Held, that § 1686 being in conflict with the former section, it was necessary to ascertain, if possible, the legislative intention, and that this was to be gathered from the cause or necessity of making the statute as well as other circumstances.
    8. Same—Spirit and purpose to be regarded—Statute to be so construed AS TO CARRY OUT LEGISLATIVE INTENTION.
    
      Held, that the spirit and purpose of the statule should be regarded in its interpretation, and that if these found fair expression in its terms, it should be so construed as to carry out the legislative intent, even though such construction were contrary to the literal meaning of some provisions of the statute.
    4. Same—Clear statement in one part best evidence of intention in ANOTHER.
    The object of all rules of construction being to ascertain the meaning of the language used, and it being unreasonable to impute to the legislatura inconsistent intents upon the same general subject-matter what it has clearly said in one part must be the best evidence of what it has intended to say in another.
    6, Real property—Intent of Code Civ. Pro., §§ 1638, 1686—Actions to determine claims to property forbidden to be commenced against INFANTS.
    The Revised Statutes prohibited the commencement of such actions against infants only; by the section first quoted this prohibition was extended so as to include the other clauses therein named. Held, that it was not intended to remove any person from the protection thrown around him by the Revised Statutes, but rather to extend the prohibition to other classes of persons incapable of taking care of their own interests.
    . Appeal from an interlocutory judgment overruling a demurrer interposed by the defendant herein.
    
      Lawrence & Waehner, for app’lt; John L>. Townsend, for resp’t.
   Van Brunt, P. J.

The defendant, in this action, is an infant. The suit is brought to compel the determination of a claim to real property, and it is claimed, on the part of the defendant, that the bringing of such an action against an infant is prohibited by section 1638 of the Code, which reads as follows:

' “ Section 1638. Where a person has been, or he and those whose estate he has, have been for three years in the actual possession of real property, claiming it in fee or for life or for a term of years not less than ten, he may maintain an. action against any other person except a person who is, when the action is commenced, an infant, an idiot, a lunatic, an habitual drunkard, or imprisoned on a criminal charge, or in execution, upon conviction of a criminal offense, to compel the determination of any claim adverse to that of the plaintiff, which the defendant makes to any estate in that property in fee or for life, or for' a term of years not less than ten, in possession, reversion or remainder. But this section does not apply to a claim for dower.”

This section is an attempted codification, with interpola-; tians of the provisions of the Revised Statutes upon this' subject, and contains a clear and emphatic provision thaí actions of this nature shall not be commenced against an infant. This was the effect of the provisions of the Revised Statutes upon the same subject, but the codifier, in attempt-* ing to improve upon the plain regulations, has introduced a section of the Code which appears to be in direct conflict with' the provision referred to so far as infants are concerned.

Section 1686, which occurs in the same title of the Code as section 1638, reads as follows:

“Any action specified in this title may be maintained by or against an infant in his own name; and article fourth of title second of chapter fifth of this act, applies to such an action, except as otherwise prescribed in sections 1535 and 1536 of this act.”

The language of this section thus apparently permits that which in section 1638 is expressly prohibited. There being thus apparently conflicting legislation upon the same subject in the same statute, it is necessary to ascertain if possible what the legislative intention was: It' is well settled that in the interpretation of statutes, the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause or necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to, and where the case is-brought within the intention of the makers of the statute it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of a statute which have to be regarded in its interpretation; and if these find fair expression in the statute, it should be ' eo construed as to carry out the legislative intent, even . though such construction is contrary to the literal meaning of some provisions of the statute.

A reasonable construction should be adopted in all cases where there is a doubt or uncertainty in regard to the intention of the law makers. People v. Lacombe, 99 N. Y., 49, and cases there cited.

The object of all rules of construction being to ascertain the meaning of the language used, and it being unreasonable to impute to the legislature inconsistent intents upon the same general subject matter, what it has clearly said in one part must be the best evidence of what it has intended to say in another. Dwarris, 197.

It is urged upon the part of the respondent that section 1686 indicates a plain intent to change the provisions of the Revised Statutes. The Revised Statutes prohibited the institution of those proceedings against a person not of full age, or insane, or imprisoned, on any criminal charge or 'conviction. By the enactment, section 1638, the legislature ¡exhibited.an' intention, not only not to restrict the prohibition'contamed in the ;Revised Statutes, but actually enlarged it^by includingfwithin¿the-prohibition, idiots and habitual drunkards, thus: indicating an intention to allow this class of actions to be commenced only in those cases in which a ■party, proceeded against was in a condition to defend himself. •

Having thus shown an intention to protect the helpless, did the legislature intend, by section 1686,. to remove that protection from an infant which it was so careful to provide for in section 1638 and leave an infant subject to assaults upon his property while such protection still continued as to the drunkard and criminal ? It seems to us that the mere statement of the proposition shows that such could not have been the legislative intent, although the language would seem to so imply. No reason can be assigned for protecting the drunkard or criminal, who place themselves under disabilities because of their own acts, and leaving the infant helpless because of no fault of his own, without any shield whatever. It is evident that in preparing section 1686 the codifier forgot the prohibitions inserted in section 1638, which prohibitions did not inadvertently creep in by reason of their previous existence in the Revised Statutes because, as we have seen, the provisions of the ■ Revised Statutes are expressly enlarged in the Code and used the general language, “Any action specified in this, title,” etc.

There being a large number of actions to which section 1686 applies, other than those mentioned in 1638, it is evident that there was no intention to remove any person from the protection thrown around. him by the Revised Statutes, but rather to extend the prohibition to other classes of persons incapable of taking care of their own interests.

Certainly this conclusion is more in harmony with the rules of construction than to hold that in one part of the same "statute the legislature deliberately enact one thing and then, in a subsequent part of the same statute, revoke the previous enactment without any apparent reason for so doing.

We are of the opinion, therefore, that the judgment appealed from should be reversed, and that the defendant should have judgment upon his demurrer, with costs of this appeal and costs of the demurrer in the court below.

Macomber and Bartlett, JJ., concur.  