
    In the Matter of the Application of the Mayor, etc., of the City of New York Relative to the Extension of La Fayette Place, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    1. Special Pboceeding—Stbeets—Pboceeding to lay out is a special pboceeding.
    A proceeding by commissioners of estimate and assessment to extend a street in the city of New York is a special proceeding.
    3. Same—Commissionebs’ compensation—Limitation—Code Civ. Pbo., § 383.
    An action or proceeding for the compensation of such commissioners must be commenced within six years, Code Civ. Pro., § 383, and the fact that the special proceeding out of which their claim arose was begun before the adoption of this part of the Code does not change the rights of the parties.
    3. Same.
    If a demand was necessary by such commissioners for their compensation, they could not delay the effect of the statute by failing to make it, Code Civ. Pro., § 410, for time begins to run from the moment when the right to make the demand is complete.
    4. Same.
    The defense of the statute of limitations can only be taken by answer, Code Civ. Pro., § 413; and where a proceeding is of a nature where an answer is not proper, the court will, in its order, save the rights of the party entitled to this defense.ultimately.
    Appeal from au order directing a reference to take proof as to the amount of the costs, charges and expenses of the commissioners of estimate and assessment appointed in this proceeding.
    
      David J. Dean, for app’lt; John C. Shaw, for resp’t.
   Daniels, J.

This proceeding was commenced pria* -> the year 1872. Its object was to take the necessary legal me' 'o extend La Fayette place southerly from its termination at uu.eat Jones street to the northerly line of Bleeclcer 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and action, and at that time the resolution of October 11, 1869, authorizing the proceedings to be taken, was rescinded and repealed.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 authorities this was what was known in the law as a special proceeding. Matter of Central Park, etc., 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 § 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 § 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 § 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 § 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 which, by § 382 of the Code, which in this respect is the same as the preceding law, has been allowed within which an action for the recovery of this demand could be instituted.

But assuming, as that 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 § 413 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. The 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.

Van Brunt, P. J., and Brady, J., concur.  