
    Mary E. Riley, App’lt, v. Ashbel W. Riley et al., Ex’rs, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Limitation—Delivery op summons to officer—Death of defendant.
    One day prior to the expiration of the statutory limit a summons was placed in the hands of the sheriff for service. He was unable to serve it and the defendant named therein died four days later. A motion to revive against his executors was denied, and this action was commenced over a year later against the executors. Held, that the statute was not arrested by the attempt to make service, as the conditions prescribed by § 399 of the Code wore not followed; that plaintiff’s only means of relief was by a continuance of the proceeding to revive the first action and that the complaint in this action was properly dismissed.
    Appeal from the judgment of the supreme court entered in the clerk’s office of the county of Monroe, on the 18tli day of March, 1891, in favor of the defendants against the plaintiff, dis-. missing her complaint.
    On the 31st day of March, 1882, there was paid to the plaintiff’s husband, General Ashbel W. Eiley, now deceased, for the plaintiff, the sum of $2,500. The general died on the 3d day of April, 1888, never having paid the money or any part thereof to the plaintiff.
    
      On the '30th day of March, 1888, the plaintiff caused to be issued and delivered to the sheriff of Monroe county, to be served upon her husband, a summons in an action in which she was plaintiff and her husband was defendant, with the intention of commencing an action to recover the claim mentioned.
    The sheriff went to the dwelling house of General Riley in the the city of Rochester on the said 30th day of March, with a view of serving the summons upon him. The general was seriously sick at the time and his physician in attendance refused to permit the service of the summons, and the general died on the 3d day of April following, without service of the summons having been made upon him. On the 24th day of September, 1888, a motion was made at special term on behalf of the plaintiff to revive the action as against the defendant’s executors. The motion was denied. No appeal was taken from the order. Nothing further was done to prosecute the claim until the month of October, 1889, when this action was commenced. The action was duly referred and tried and the plaintiff’s complaint was dismissed by the referee, and this appeal was taken from the judgment entered thereon.
    
      Walter S. Hubbell, for app’lt; F. L. & J. E. Durand, for resp’ts.
   Lewis, J.

Plaintiff’s cause of action accrued when the money was paid for her to her husband, March 31, 1882, and, unless the running of the statute was arrested by the delivery of the summons to the sheriff, the statute had run against the claim before the death of General Riley. Mills v. Mills, 115 N. Y., 80; 23 St. Rep., 604.

• The delivery o£ the summons to the sheriff was equivalent to the commencement of an action within the provisions of the Code limiting the time for the commencing of actions, and would have arrested the running of the statute had the conditions of § 399 of the Code of Civil Procedure .been complied with, by the personal service of the summons upon the defendant sought to be charged, or by the first publication of the summons pursuant to an order for service upon him in that manner, within sixty days after the expiration of the time limited for the actual commencement of the action.

.The death of General Riley made a literal compliance with these conditions impossible, and it is the contention of the plaintiff that, because of such impossibility, the delivery of the summons arrested the running of the statute, and that the plaintiff should be excused from a compliance with the conditions.

It is held in Estes v. Wilcox, 67 N. Y., 264; Adsit v. Butler, 87 id., 585; Nat. Tradesmen's Bank v. Wetmore, 124 id., 248; 35 St. Rep., 316, that a compliance with all the provisions of § 399 is indispensable in order to prevent the statute from running against the claim.

The plaintiff evidently took this view of the situation, as is evidenced by her attempt to revive the action against these defendants as executors. When defeated in her motion, she abandoned that proceeding and afterward brought a new action directly against the defendant’s executors.

When General Riley died, the summons was in the hands of the sheriff for service; it had an actual potential existence. General Riley was the sole defendant named. Section 757 of the Code provides that in case of the death of a sole defendant where the cause of action survives, the court must, upon a motion, allow the action to be continued against his representative or successor in interest. Whether it can be held that General Riley was a defendant within the meaning of this section before the service of the summons upon him may be doubted, but it must be held, we think, that the only means of relief the plaintiff had, if she had any, lay in the continuance of the proceeding to revive the action. The action in which the attempted service was made must in some manner have been continued to avail the plaintiff anything in arresting the running of the statute. Sección 399 expressly provides that in order to entitle a plaintiff to the benefit of the section, the delivery of the summons to an officer must be followed by the personal service upon the defendant or by the publication of the summons.

It was held in Clare v. Lockard, 122 N. Y., 263; 33 St. Rep., 328, that a substituted service within the sixty days is equivalent to the personal service or publication of the summons within the meaning of § 399. It was held in the case of Palmer v. Ensign, by the superior court of Buffalo, opinion of the court by Judge James M. Smith, that when a defendant dies after the delivery of the summons to the sheriff, and before it is served on the defendant, the action may be continued against his personal representatives. A synopsis of this opinion may be found in the 19th Albany Law journal, 399. The case in 124 N. Y., supra, to which our attention is called by the appellant, is not an authority for the plaintiff. It has no application to an action at law.

We see no way to give the plaintiff relief, and the judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.  