
    
      In re Extension of Lafayette Place.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    ¡Limitation or Actions.
    Commissioners of estimate and assessment were appointed under an act providing for the acquisition of lands for city purposes, but before completing their proceedings the resolution under which they were acting was repealed. The commissioners presented no claim for their fees and expenses until after action therefor was barred by limitation. Code Civil Proc. N. Y. § 382. They then moved to refer their claim to a referee to take proof preliminary to taxing their costs. Held that, as section 413 requires the statute of limitations to be taken advantage of by answer, ■and the proceeding of the commissioners did not admit of the defense being so presented, the order should be made; but, to avoid the possibility of prejudice to the •city’s rights, it should recite that it should not afiect the right of the city to interpose the defense if the claim should be afterwards sued on.
    Appeal from special term, New York county.
    A special proceeding was begun to acquire land in New York city for the -extension of Lafayette place. Commissioners of estimate and assessment were appointed, but before concluding tlieir labors the resolution under which they acted was rescinded by the council, arid nothing further was done until, several years later, the commissioners, being desirous of being paid their fees and expenses, moved a reference to take proof concerning their claim. This order was made over the objection of the city, which appeals therefrom.
    Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
    
      William II. Clark,' David J. Dean, and Carroll Berry, for appellant. John C. Shaw, for respondents.
   Daniels, J.

This proceeding was commenced prior to the year 1872. Its object was to take the necessary legal measures to extend Lafayette place southerly, from its termination at Great Jones street, to the northerly line of Bleeeker street. In March, 1872, while the proceeding was pending and incomplete, it was brought before the common council of the city for further consideration and action, and at that time the resolution of October 11,1869, authorizing the proceedings to be taken, was rescinded and repealed. That was a complete termination of what had previously been authorized for this object, and at that time the rights of the commissioners of estimate to their compensation became complete. There was nothing further to be done by them beyond their own act in making out and authenticating their account; but they took no measure or proceeding for that object, but allowed their claim to remain in this condition until the 30th of June, 1887, when they gave notice of the motion, which, upon its hearing, resulted in the order from which this appeal has been brought.

The objection presented to the making of the order was that the commissioners had, by their delay, deprived themselves of the right to this compensation and reimbursement; and that objection seems to be supported by the-statute. According to the authoritie-s, this was what was known in the law as a special proceeding, (In re Central Park, 50 N. Y. 493;) and the liability to make compensation for the services of the commissioners, and to reimburse-their disbursements, arose under the statutes relating to these proceedings; and, where the object is to enforce such liability, then, by section 382 of the Code of Civil Procedure, an action for that purpose is required to be commenced within six years, (People v. French, 31 Hun, 617.) The fact that the claim of the commissioners has arisen out of a special proceeding, commenced prior to the time of the adoption of this part of the Code, in no way changes or extends their rights, or the liability of the city; for, by section 414 of the same Code, the provisions prescribing the time within which actions-shall be commenced are made applicable also to special proceedings, and, under the provisions contained in this section, as the commissioners were entitled to commence an action for the recovery of their demand at the time-when this part of the Code took effect, they were thereby allowed the period of two years after that in which to commence their action. This part of the Code, by section 3356, went into operation in 1877, after the commissioners had delayed taking any proceedings whatever for the collection of their claim for the period of five years and upwards, and it secured to them only two additional years within which they were still at liberty to take the necessary proceedings. But they failed to do that. They made no application for payment, and took no proceedings whatever to enforce it. If a demand was required to be made by them, they could not delay or intercept the effect of the statute by omitting to make it; for, by section 410 of this Code, where a demand may be necessary to entitle a person to maintain an action, the time-within which it is to be commenced must be computed from the time when-the right to make the demand is complete. Certain cases have been excepted from this part of the section, but they have no application to the claim of these commissioners.

Since these provisions have taken effect, a longer period of time has elapsed than that prescribed by section 382 of the Code, which, in this respect, is the-same as the preceding law, than has been allowed within which an action for the recovery of this demand could be instituted. But assuming, as appears to be justified, that the commissioners’ claim has become barred by these provisions of the statute of limitations, still the objection does not appear to be available, as it has now been relied upon by the city; for, by section 418, the objection that the action is not commenced within the time limited can be taken only by answer, and this proceeding afforded no opportunity or means of presenting it in this manner. Its object is'to obtain proof indicating the extent of the demand by the commissioners. The proceeding, as it has been taken, can result in no prejudice to the defendant, nor in any obligation requiring the payment of the commissioners’ claim, or any part of it; but, when its extent shall be ascertained, that will then form the subject of an action in which this defense of the statute of limitations can be interposed as the law has provided that shall be done. Blunt v. Mayor, 9 Hun, 330. But, as the objection was taken that the order should not be made on account of this long period of delay, to avoid the possibility of any prejudice to the city in its defense, when an action to recover the amount may be commenced, the order should be so far modified as to declare that it shall in no manner affect the right of the city to rely upon the defense of the statute of limitations, and, as so modified, affirmed, without costs-to either party. All concur.  