
    (23 Civil Proc. R. 232.)
    JORGENSEN v. MINISTER, ETC., OF REFORMED LOW DUTCH CHURCH OF HARLEM et al.
    (Common Pleas of New York City and County, Special Term.
    October 18, 1893.)
    Limitation of Actions—Personal. Injuries Caused- by Nuisance.
    Code Civil Proc. § 382, subd. 3, provides that an action for personal injuries must be brought within six years, except when otherwise expressly provided. The only express exception is in section 383, subd. 5, which limits actions for personal injuries resulting from negligence to three years. Held, that an action for personal injuries resulting from nuisance is not barred in three years, but in six.
    Action by Hans F. Jorgensen against the minister, elders, and deacons of the Reformed Low Dutch Church of Harlem and others to recover for the loss of services of the plaintiff’s wife. Plaintiff demurs to so much of the answer as sets up the three-years statute of limitations.
    Sustained.
    The complaint alleged that defendant church corporation was the owner of, and the defendants Squires Bros, were the lessees from said corporation, and in possession of, the premises consisting of the lot of ground and building commonly known as “No. 2256 Third Avenue,’’ in the city of New York. That defendants there wrongfully and unlawfully maintained as an appurtenance connected with said premises a cellar or vault opening extending from the front line of said lot bordering upon said highway at least five feet beyond the street line thereof, and about four feet wide into the public sidewalk of said avenue. That said vault opening contained a stone stairway leading to the cellar of said building, which was not covered by any indestructible material, nor protected by iron railings, but which was covered, contrary to law, by wooden doors, secured to the said sidewalk by hinges; and that said opening in the sidewalk so covered was a public nuisance. That said premises and vault or cellar way were in the condition above described when the premises were leased as aforesaid by the defendant corporation to the defendants Squires Bros, prior to said September 25th. That on or about September 25, 1889, while plaintiff’s wife was rightfully upon said wooden doors, they fell, whereby she was precipitated down the said cellar way into the cellar below, and she thereby received severe contusions, which rendered her helpless for many months thereafter. That by reason of said nuisance and the facts alleged plaintiff lost the services, assistance, and society of his wife for a long period of time; he incurred medical and nursing expenses incident to her said illness exceeding $100, and he has suffered damages in the sum of $10,000.
    William B. Tullis, for plaintiff.
    Robert A. Johnston, for defendants.
   GIEGERICH, J.

The question raised by the defendant in opposition to the demurrer herein is whether any distinction exists between an action for personal injuries caused by the maintenance of a nuisance and an action for personal injuries resulting from negligence, with reference to the statute of limitations. The complaint clearly sets forth the cause of action for damages by reason of the maintenance of a nuisance, and, unless it can be said that the above distinction does not exist, the demurrer must be sustained. Section 382, subd. 3, of the Code, prescribes that the time within which an action for personal injuries shall he brought is six years, “except in a case where a different period is expressly prescribed in this chapter.” The only express exception relative to an action for personal injuries is found in section 383, subd. 5, which relates to personal injuries resulting from negligence, in which case the limitation is three years. I can find no justification for holding that this action can be brought within the exception expressed in the above section. The question of negligence is not in this case, an unlawful maintenance of the structure causing the injury being the sole gravamen of the action. Even under the most liberal construction of section 383, it cannot be said to comprise an action of this character, and a construction the reverse of liberal should be adopted in reading that section in connection with the former provision, in derogation of which it stands. The demurrer is therefore sustained, with costs.  