
    LONDRIGGAN v. N. Y. & NEW HAVEN R. R. CO.
    
      N. Y. Superior Court; Special Term,
    February, 1882.
    Action foe causing Death.—Foreign Corporation; Limitation of Action.
    A corporation of another State sued here on our statute for causing death, may plead the short limitation peculiar to that statute (Code Civ. Pro. §1902); for this limitation, not being a provision of the general statute, but “a different limitation prescribed by law ” (Id. § 414), the case is taken out of the general rule by which a foreign corporation (being deemed a non-resident under § 401), cannot avail itself of the limitations in the general statute.
    
    
      Demurrer to answer.
    This was an action, brought by plaintiff as administrator of the estate of Patrick Londriggan, deceased, against the defendant, a foreign corporation created and existing under and by virtue of the laws of the state of Connecticut, to recover, $5,000, with interest, costs, disbursements, &c., for the killing of the said Patrick Londriggan, deceased, by one of defendant’s trains, which was running at a speed of twenty-five miles an hour or more, near Fordham station in the city of New York, about six o’clock on the evening of October 23, 1878. It was alleged that ■ his death was caused by the carelessness and negligence of the defendant, its agents, servants and employes.
    The defendants in their answer set up a general denial as to the allegations concerning the death of Londriggan, stating that it was caused by Ms own negligence ; and, second, for a further defense claimed that the action was not commenced within two years after the death as aforesaid, and demanding judgment, asked that the complaint be dismissed with costs ; to which “ second and further defense the plaintiff demurred, upon the ground that it wras insufficient in law and upon the face thereof.”
    
      Henry Cooper, for plaintiff.
    
      William E. Barnett, for defendant.
    
      
       For greater 'convenience, we here annex the sections of the Cdde of Civil Procedure alluded to in the judge’s opinion.
      Section 401. “If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from and resides without the State, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time, limited for the commencement of the action. But this section does not apply, while a designation, made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two of this act, remains in force.”
      Section 414. “The provisions of this chapter apply, and constitute the. only rules 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, or a shorter limitation is prescribed by the written contract of the parties.”
      Section 1902. “The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent’s death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent’s death.”
      
        Compare with the case in the text, the-case of Kaiser v. Kaiser, 16 Hun, 602, where the rule of the general statute, that a limitation must be pleaded" to be available, was applied by analogy to the special short limitation prescribed by the statute of divorce. Compare National State Bank of Newark v. Boylan, 2 Abb. N. C. 216.
    
   Sedgwick, Ch. J.

If it were not for section 401 Code Civ. Pro., the limitation of the time of enforcing civil remedies, would be applied to all defendants irrespective of their being in or out of the state, residents or non-residents, at the time of the accruing of the action or during the limited time.

- Upon provisions similar to section 401, it was held, that foreign corporations could not avail themselves of the statute of limitations, because such provisions applied to corporations as well as natural persons, and a foreign corporation was always without the State Olcott v. Tioga R. R., 20 N. Y, 210.

Section 414 declares that the provisions of chapter 4 shall apply, except in a case where a different limitation is specially prescribed by law. If this were all inasmuch as the present case is under section 1902, which prescribes a special limitation of two years, it would seem to be clear that the provision of section 401 does not apply to the case, and the plaintiff is not authorized to commence the action at any time after the time specially limited therefor, has passed.

The only doubt, however, that occurs to me would be, if at all, created by the question whether the words the “provisions of this chapter” were not so limited by its connection as not to refer to all the provisions in the widest sense, but to refer to the times specifically declared within which actions might be begun, e. g., 20 years for ejectment, 6 years for contracts not under seal, &c. The words are, “The provisions of this chapter apply and constitute the only rules of limitations applicable to a civil-action,” &c. A scrutiny of section 401, shows that the enlargement of the time given by it, upon the conditions it names is in an exact sense a limitation of time and is a rule of limitation, as also are the specific terms before named in the chapter.

The demurrer should be overruled, with judgment for defendant.  