
    William R. Scovil vs. Lydia Scovil, Adm’x, and Byron Scovil, Adm’r, &c. of John R. Scovil, deceased.
    The section of the Revised Statutes which provides that the term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators, (2 R. 8. 448, $ 8,) is not repealed by section 102 of the Code of Procedure, by which it is declared, that if any person entitled to bring an action shall die before the expiration of the time limited for the commencement thereof, and the cause of action survives, it may be commenced by his representative within one year after his death.
    One having a claim against a person deceased, has eighteen months after the death of the latter, during which the running of the statute is suspended; and if personal representatives are appointed, he has, in addition, one year from the time of their appointment.
    Hence, an action upon a promissory note, brought against administrators, more than a year after issuing letters of administration, but within six years after the note became due, if eighteen months are excluded in the computation of time, is not barred by the statute of limitations.
    When a note is made payable on demand, simply, it is to be deemed due at its date, and may be prosecuted immediately, although an actual demand must be made in order to entitle the holder to draw interest upon the principal sum. But where the note is payable oh demand with interest, or with annual interest, the statute of limitations does not begin to run until payment is actually demanded. Rer Bacox, J.
    APPEAL from an order made at a special term, directing judgment to be entered for the plaintiff, on a special verdict. The action was upon a promissory note made by John E. Scovil, the defendants’ intestate. Defense, the statute of limitations. The jurors found a special verdict containing these facts, viz: That the defendants’ intestate, on the 22d of April, 1857, made and delivered to the plaintiff a promissory note, hy which, on demand, for value received, he promised to pay the plaintiff, William It. Scovil, or order, twenty-five hundred dollars, with annual interest. That said John B. Scovil died, at'West Turin, Lewis county, in this state, on the 22d day of January, 1862, intestate. That on the 2d of June, 1862, letters of administration were duly issued upon his estate, to the defendants, hy the surrogate of Lewis county, and they accepted and are still acting in the discharge of their trust. That the- amount remaining due upon the note was $3899.51; and that this action was commenced hy summons, which was delivered to the sheriff of the proper county, for service,_ on the 25th day of April, 1864, and duly served April 27th, 1864.
    
      C. D. Adams, for the appellants,
    claimed that when this suit was commenced, the note had run seven years and three days, and letters of administration had been granted one year, ten months and twenty-three days. He insisted that the statute of limitations ran from the date of the note; (3 Abb. Dig. p. 728, n. 182, citing Chitty on Bills, 374; Bul. N. P. 151; 13 Wend. 267 ;) and that, the general principle of all the cases was, that the statute began to run from the time the plaintiff might have sued; and such is the statute. (Code, §§ 74, 91.) By section 102 of the Code the action was barred by lapse of time. The plaintiff did not commence his siiit after the expiration of six years and within one year after letters were issued to the defendants. The 102d section of the Code contains the existing rule. It has superseded the eighteen months provision of the Bevised Statutes.
    
      Levi M. Btown, for the respondent,
    contended that the note on which the action was brought had run only four years and nine months, at the death of the intestate, and by its terms was payable on demand with annual interest. That at the commencement of the suit, seven years and three days had elapsed, aftér the making of the note, and one year5 ten months and twenty-three days after the granting of letters of administration; and that if eighteen months after the death of the intestate was not to he counted as a part of the time limited hy law for commencing the action, the plaintiff had five months more, less three days, for commencing the action; that is, to make Seven and a half years from the making of the note. That the statute did not commence running against this note until the commencement of this action, no other demand of payment having been proved on the trial. (Merritt v. Todd, 23 N. Y. Rep. 28. Payne v. Slate, 39 Barb. 634, and cases there cited.) And that seven years and a half from the making or .maturity of the note not having elapsed, the statute of limitations had not begun to run at the commencement of the action. (13 Wend. 267. 24 id. 488, 489. 5 Barb. 397. 16 id. 33, 44. 3 Hill, 36. 3 R. S. 746, 5th ed. § 8.)
   Morgan, J.-

The special verdict contains the following facts: J. E. Scovil made his promissory note April 22,1857, by'which, on demand, he promised to pay William E. Scovil $2500j with annfial interest. J. E. Scovil died January 22, 1862, intestate, and letters of administration upon his estate were issued to the defendants June 2, 1862, and this suit was commenced April 25, 1864, more than a year after issuing letters of administration, but within six years after the note became due, if we exclude eighteen months in the computation of time. The defense is the statute of limitations. By chapter 8, part 3 of the Revised Statutes, entitled “ Of proceedings in special cases,” title 3, article 1, section 8, (2 R. S. 448,) it is provided as follows; “ The term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by any law for the commencement of actions against his executors or administrators.” By the Code of Procedure, section 471, title 1 of chapter 8 above referred to is declared not to be affected by the provisions of the Code, except where any particular' provision shall be plainly inconsistent therewith. If, then, there is no provision in the Code plainly inconsistent with section 8 of title 1 of the Revised Statutes, above referred to, the suit must be regarded as having been brought' within six years after the date of the note, excluding the eighteen months which is. not to be deemed any part of the six years. But it is claimed that section 102 of the Code of Procedure has, by implication, repealed section 8 of the Revised Statutes, That provides that an action may be commenced against the administrators of the intestate, in such a case as this, within one year after the issuing of letters of administration. If, therefore, letters of administration had not been taken out until twice eighteen months after, the death of the maker of the note, the plaintiff might have brought his action within a year after, so that, practically, the term of eighteen months may be of no consequence, when letters- of administration are delayed for a long time.

It will be observed that the latter part of-section 102 of •the Code wag not included in the provisions of chapter 4, article 4, part 3 of the Revised Statutes, (2 R. S. 298,) which were repealed by section 73 of the Code. It is a new provision, and may operate to extend the time for .commencing áctións against administrators in many cases where the debtor dies before the expiration of the time limited for the commencement thereof, and the cause of action survives. But is it plainly inconsistent with section 8 of the Revised Statutes which excludes from the computation of time the eighteen months succeeding the death of the intestate ? By a familiar rule in the construction of statutes, if both provisions can stand together, they must stand, (Dwarris, 673 to 675.)

I confess I am unable to see any necessary conflict between these two provisions of law, unless we construe section 102 of the Code as undertaking to limit as well as to extend the time for commencing actions against administrators, in certain cases therein mentioned. If section 8 of the Revised Statutes is repealed, and if letters of administration are issued within one month after the death of the intestate, there would he only thirteen months remaining in which the action could' he brought, provided the six years expired in the meantime. And if the six years should not expire until one year after letters of administration issue, there would be no time to be excluded from the computation. But' it is quite clear that section 102 did not undertake to limit the time in which the action might he brought against administrators. Giving the plaintiff the benefit of the eightéen months in all cases, the latter part of the provision of section 102 merely extended the time, when letters of administration were delayed, so that a suit could not be brought within the time limited for that purpose by the laws already existing.

I think the plaintiff is entitled to judgment, upon the special verdict.

Mullís, J.

By section 8 of article 1, title 3, chapter 6, third part of the Revised Statutes, it is provided that the term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators. By the 9th section it is provided that the time which shall have elapsed between the death of any person and the granting of letters of administration on his estate, not exceeding six months, and the period of six months after granting of such letters, shall not be deemed any part of the time limited by any law for the commencement of actions by executors or administrators. Section 102 of the Code provides, that if any person entitled to bring an action shall die before the expiration of the time limited for the commencement thereof, and the cause of action survives,' it may be commenced by his1 representative within one year after his death. If the person against whom an action may be brought die before the expiration of the time limited, and the cause óf action survive, it may be brought against his personal representatives after that time, and within one year after the granting of letters testamentary or of administration. The question to be decided is, whether section 102 of the Code repeals the section of the Revised Statutes first cited, or whether the two provisions can stand together. Under section 8, if the person owing the debt or duty died before the statute ran against the cause of action, it must at all events be brought within seven years and six'months from the time the right of action accrued, if the limitation of six years applied to the cause of action. Hence it became absolutely necessary for the person desiring to sue, to cause representatives to be appointed within the seven years and six months. (Wenman v. The Mohawk Ins. Co., 13 Wend. 267. Reynolds v. Collins, 3 Hill, 36.) The section of the Code permits the action to be brought at any time within one year after letters testamentary or of administration issue. If the provisions of the Code repealed section 8 of the Revised Statutes, it will follow that if the debtor dies after the statute of limitations has run one year and letters of administration are taken out immediately, the time within which the action must be brought is reduced to two years, as to the claim against the representatives of the’ deceased. If the debtor should die at the end of five, years from the time the cause of action accrued, and letters of administration should be at once taken out, the whole time allowed within which to'bring the action would be six years, as it must be brought within one year after the issuing of letters. Such a result, I am quite confident, was not intended by the legislature. The provision of section Í02 of the Code, permitting the party to bring his suit within one year after letters .of administration shall have issued,.relieves him from the necessity of procuring the appointment of some one to represent the estate, or lose his debt. These several provisions, I understand to give to a person having a claim against a deceased pierson, eighteen months in addition to the time of limitation; because the personal representatives have eighteen months within which they are not compelled to pay, and this time was allowed to enable the representatives to collect in the assets, so as to he able to pay without suit.

It would be folly to allow eighteen months to the administrators to collect, and yet compel the creditors to sue, if their claims were not allowed within a less time. The con- • sequence is that the party suing has eighteen months after the death, during .which the running of the statute is suspended ; and if personal representatives are appointed, he has, in addition, one year from the time of their appointment. (Dayton’s Surrogate, 346.)

This action was commenced within the time limited, and the judgment should therefore be affirmed.

Bacon, J.

Without definitely passing upon the question which has been mainly argued here by the defendants’ counsel, to wit, that the limitation of one year after the granting of letters of administration in which to bring an action, as prescribed by section 102 of the Code, has repealed the eighteen months provision of the Revised Statutes, I am of opinion that in any view of this case the statute did not begin to run from the date of the note in suit. Where a note is made payable on demand, simply, then the note is deemed to be due at its date, and may he immediately prosecuted, although an actual demand must he made, in order to entitle the holder to draw interest upon the principal sum. But by the addition of the words “■ with interest,” in the body of the note, a different rule obtains. Where these words are inserted, a presumption arises that the parties intended that the note should not he immediately due, hut for some customary mode of paying interest, as a quarter or a half year, or perhaps year. And following the decision of the Court of Appeals, in 23 N. Y. Sep. 28, the Supreme Court in the third district held that a note on demand, with interest, is not due until demanded, and was a continuing security. The note in this case is payable on demand “with annual interest; ” evidently contemplating that it was not to he demanded until, at any rate, the expiration of a year, and, as I think, not until more than one year, had. elapsed. It was not dishonored, therefore, until the lapse of such a period, nor until actually demanded; and no demand was proved, except the suit brought upon it. Consequently, the statute of limitations, whatever period we may think is prescribed, had not attached to this note, and the attempted defense entirely failed.

[Onondaga General Term,

October 3, 1865.

I think the plaintiff should have judgment.

Judgment affirmed.  