
    FRANCES D. HALL and Another, as Trustees under the Will of HENRY L. WEBB, Deceased, Respondents, v. FANNY BRENNAN and Another, as Executors of GEORGE B. BIXBY, Deceased, Appellants, Impleaded with Another, Defendant.
    
      Statute of limitations — death of the maker of a note — effect of delay in issuing letters testamentary — when the time to sue is extended — failure of a creditor to apply for a temporary administrator — costs against executors.
    
    On September 17, 1880, George B. Bixby made and delivered his promissory note, payable twelve months after date, to William Slocum, who indorsed the note and delivered it to Frances D. Hall and another, as trustees. Bixby died on August 12, 1887, leaving a will which, after a contest, was admitted to probate on March 23, 1889, upon which latter day letters testamentary were issued to the executors, Fanny Brennan and John H. Bixby.
    On March 21, 1890, the summons, in an action brought upon the note by the indorsees thereof, was delivered for service to the sheriffs of the counties where the defendants, the executors of George B. Bixby, respectively resided, and service was made upon them on April 15, 1890.
    
      Held, that the action was not barred by the six-year statute of limitations.
    That the last day upon which the action could have been brought, if George H. Bixby had not died, was September 21; 1887.
    That the period of eighteen months after the death of George H. Bixby, which, by section 403 of the Code of Civil Procedure, was no part of the time limited for the commencement of the action, expired March 21, 1889.
    That from the time of his death, August 12, 1887, to the issue of letters testamentary, March 23, 1889, there was no person in being against whom the plaintiffs could have brought their action.
    That this amounted to a statutory prohibition as to the plaintiffs’ right to sue, and said last-mentioned period was no part of the time limited for the commencement of the action. (Code of Civil Pro., § 406.)
    That the last clause of section 403 of the Code of Civil Procedure, to the effect that if letters testamentary are not issued at least six months before the expiration of the time to bring an action, as such time is extended by the first clause of the section, then the term of one year after such letters are issued is not a part of the time limited for the commencement of the action, applied to this case.
    That the action would be deemed to have been begun on March 21,1890, and was, therefore, begun two days before the expiration of one year from March 23,1889, when the letters were issued.
    That, although the plaintiffs might, under section 2668 of the Code of Civil Procedure, have applied for the appointment of a temporary administrator, yet as the granting of such an application was discretionary with the surrogate the law would not require the plaintiffs to make such an application under penalty of losing their debt.
    That as the defendants were executors, the question of an allowance of costs against them could only he considered upon a special motion.
    Appeal by the defendants, Fanny Brennan and John H. Bixby, as executors of George B. Bixby, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 18th day of November, 1891, upon a recovery by the plaintiffs of $3,000, and interest and costs, after a trial at the Saratoga Circuit before the court.
    
      J. W. Houghton, for the appellants. .
    
      Hale <& Bulheley, for the respondents.
   The following is the opinion of the trial court:

Tapp an, J.:

The plaintiffs were, in June, 1880, appointed by this court trustees under the will of Henry L. Webb, deceased, in place of Richard Yan Rensselaer, the last surviving trustee under said will.

George B. Bixby, the defendant’s testator, on or about the 17th day of September, 1880, duly executed and delivered to the defendant, William Slocum, his promissory note in writing, whereby, twelve months after date, he promised to pay William Slocum, or order, $3,000 for value received, at the office of Hand & Hale, Albany, N. Y., with interest payable semi-annually from date. On the same day said note was by the defendant, William Slocum, duly indorsed and transferred to the plaintiffs, and by such indorsement made payable to the order of said plaintiffs, waiving demand and notice of protest.

The principal of such note, with interest from September 17,1890, remains unpaid, and plaintiffs are concededly entitled to recover the same against defendants, the personal representatives of George B. Bixby, unless such recovery is barred by the statute of limitations.

George B. Bixby died on the 12th day of August, 1887, leaving - a last will and testament, whereby the defendants, Fannie Brennan and John II. Bixby, were duly appointed executrix and executor of said will.

Said will was presented for probate to the surrogate of the county of Saratoga, of which county the said George B. Bixby was a resident at the time of Ills death, on the 27th day of September, 1887.

The probate of the said will was contested by the heirs-at-law of the said George B. Bixby, deceased, but the same was admitted to probate and letters testamentary thereon issued to the defendants on the 23d day of March, 1889; and no letters testamentary or of administration were issued until that day.

The summons in this action was delivered to and received by the sheriff of Saratoga county, where the defendant Fannie Brennan then -resided and still resides, and to the sheriff of Wayne county, where the defendant John EL Bixby then resided and still resides, on the 21st day of March, 1890, with the intent that it should be served upon said defendants, respectively, and such summons was actually and personally served on the defendants on or about the 15th day of April, 1890.

Upon these facts, it appears that the right of action upon the note accrued to the plaintiffs at the end of twelve months and three days from the date of the note, viz , on September 21, 1881; and had George B. Bixby lived, the last day on which an action .could have been sustained against him would have been September 21, 1887. (Code of Civ. Pro., §§ 380,382,403; Smith v. Aylesworth, 40 Barb., 104; Outhout v. Ballard, 41 id., 33.)

The period of eighteen months after the death of George B. Bixby was no part of the time limited for the commencement of the action. (Code of Civil Procedure, § 403.) The eighteen months are calendar months, next succeeding the end of the six years’ limitation. The period of eighteen months expired March 21,1889. Letters testamentary were issued to the defendants March 23, 1889, not six months before the expiration of the time to bring the action, but two days after that time.

The provisions of the last part of that section, that if letters testamentary or of administration have not issued at least six months before the expiration of the time to bring the action, as extended by that section, the term of one year after such letters are issued is not a part of the time limited for the commencement of said action, would seem to apply; but this court, at General Term, in Chapman v. Fonda (24 Hun, 130), has held that where the full period of limitation had expired before such letters issued, such provision had no application. For the purposes of the statute of limitations, the action will be deemed to have been commenced on March 21, 1890, when the summons was delivered to the sheriffs, with intent to have the same served, such service having been actually made within sixty days thereafter. (Code of Civil Procedure, § 399.)

Prom the time of the death of George B. Bixby, August 12,1887, until letters testamentary were issued upon his will March 23,1889, there was no person in being against whom plaintiffs could have brought suit to enforce their claim upon their note against his estate; this was, in effect, a statutory prohibition, and such time was no part of the time limited for the commencement of an action. (Code of Civil Pro., § 406; Mead v. Jenkins et al., 95 N. Y., 31; Brehm v. Mayor, etc., 104 id., 186; Church v. Olendorf, 49 Hun, 439, 444.)

It is no answer to this view to say that plaintiffs might have applied for a temporary administrator under section 2668, Code of Civil Procedure. They could not procure such appointment as a matter of right. It is expressly made dependent on the discretion of the surrogate. The law did not require them to make the application under penalty of losing their debt.

The payment by Slocum with Bixby’s money is not proven to have been with the authority of the latter. Plaintiffs do not contend that this authority is shown except by averment in the answer, which they insist should be construed as an admission of such authority. Such averment is upon information and belief, and for that reason alone should not be construed to be an admission of the fact thus averred against the defendants’ personal representatives, who have no actual knowledge. (Mayor v. Fay, 53 Hun, 553.)

Again, if the admission was absolute and unqualified in its form, the answer would have to be read together, at least so far as it tends to discharge the defendants from liability when detached parts would tend to fix liability upon them. (Goodyear v. De La Vergne, 10 Hun, 537; Gildersleeve v. Landon, 73 N. Y., 609.)

The allegation in the answer and the proof' given at the trial are not sufficient to show that Slocum made the payment of interest upon the note by the direction or authority of Bixby, or that Bixby ever approved of such payment Such payment did not operate to affect the running of the statute of limitations against Bixby or his personal representatives, the defendants.

Costs against the defendants can be allowed only on the special order of the court. The question of costs does not properly come up on the decision of the case. The right to costs depends upon the facts not within the issues made by the pleadings, which can be properly shown by affidavits on special motion. (3 Wait’s Pr., 535, and cases there cited; Baylies’ Trial Pr., 384, 385.)

The plaintiffs are entitled to judgment against the defendants, executors, etc., for $3,000, with interest from September 11, 1890, also against defendant William Slocum for the same amount. Judgment is ordered accordingly. •

Present — Mayham, P. J., Putnam and Herrick, JJ.

Affirmed on opinion of trial judge in court below, with costs.  