
    Hugh Conway, as Administrator de Bonis Non, etc., of Thomas H. Sim, Deceased, Appellant, v. The City of New York, Respondent.
    First. Department,
    July 7, 1910.
    Municipal corporation — negligence — limitation of action — chapter 572, Laws of 1886 — rights of administrator appointed after death of administratrix—representative áction.
    In an action' to recover damages from a city for a death alleged to have been ■ caused by negligence, a cause of action is deemed to have accrued upon the appointment of an executor or administrator, and the Statute of Limitations, provided by section 1 of chapter 572 of the Laws of 1886, begins to run from ■ that time.
    In cases of infancy the running of the year provided by that statute is suspended ■by reason of the exception contained in section 396 of the Code of Civil . Procedure. ~
    Where the administratrix of a decedent dies before suit brought, the cause of action does not abate, but survives to the person who may be subsequently ' appointed in her place.. >
    Where the administratrix of one alleged to have been killed owing to the defective condition of a street in New York city.duly filed notice of claim and intention to sue as provided by statute within six months after her appointment, and having been examined by the corporation counsel, died before action brought, - one appointed administrator de bonis non may begin an action within one year after the death of the prior representative, provided it is within two years from the time of the death of the decedent, as prescribed by section 1902 of the Code of Civil Procedure.
    Ingbaham, P. J., and Dowling, J., dissented, with opinion.
    Motion by the plaintiff, Hugh Conway,'as administrator, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, on the dismissal of the complaint by direction of the court at the opening'of the. case, at the Hew'York Trial Term in June, 1909.
    
      Hellmuth Moerchen, for the appellant.
    
      Theodore Connoly of counsel Clarence L. Barber with him on the brief], Archibald R. Watson, Corporation Counsel, for the respondent.
   Clarke, J.:

This action was brought against the city to recover damages for the death of Thomas H. Sim oh May 11,1906, alleged to have been caused by the dangerous, unsafe and defective condition of Eighth avenue due to the negligence of the defendant. The sole question presented is one of law, was the action commenced within the time limited by statute ?

The complaint alleges that on June 13, 1906, letters of administration were duly issued to Mary Sim, widow of decedent, who duly qualified; that on December 12, 1906, she duly served notice of her intention to sue upon the corporation counsel, and duly served demand and claim upon the comptroller, and such service was within- six months after the accrual of the cause of action herein ; that at least thirty days had elapsed since the filing of the demand with the comptroller, and that he had refused to make any adjustment for more than thirty days; that the said Mary Sim died February 1, 1907; that on August 5, 1907, letters of administration de bonis non upon the estate of said Thomas H.' Sim were duly issued to this plaintiff, who. duly qualified.

The answer alleges that the notice alleged to have been served upon December 12, 1906, was not served within six months after the cause of action accrued to plaintiff herein. As a separate defense it alleges that .this cause of action was not brought within one year after the cause of action accrued, pursuant to chapter 572 of the Laws of 1886. . ,

It was conceded that on January 8, 1907, Mary Sim, then administratrix, was examined by the corporation counsel, pursuant to notice from the comptroller, as prescribed by the charter (Laws of 1901, chap. 466, § .149, as amd. by Laws of 1904, chap. 247); that on February 1, 1907, she died, leaving two infant daughters; that on August 5,1907, Hugh Oonway was appointed administrator de bonis non • and that on September 19, 1907, this action was commenced. It was also conceded that no action was commenced by Mary Sim in her lifetime.

A motion to dismiss the complaint was made on the ground that it was not commenced within one year after the cause of action therefor had accrued. The motion was granted and exception duly taken.

-Section 1 of chapter 572 of the Laws of 1886 provides that “Ho action against the mayor, aldermen and commonalty of any city in this State having fifty thousand inhabitants or over, for damages -for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained, unless the'same shall be commenced within one • year after the cause of action therefor shall have accrued, nor- unless' notice of the intention to commence such action, and of -the time and place at which the injuries were received, shall have been filed with the. counsel to the corporation or other proper -law officer thereof, within six months after such cause of action shall have accrued.”

In Bernreither v. City of New York (123 App. Diy. 291; affd., 196 N. Y. 506, “upon the ground that the notice of intention to sue required by the act of 1886, and the demand required by the provisions of the city charter are concurrent in their obligations, both being conditions precedent to the right to'main-tain the action ”) we said : “ This statute is a statute of limitations, in that it limits the time within which an action for negligence can be maintained against a city to one. year after the cause of action therefor shall have accrued. It also requires as a condition precedent that notice of intention to sue shall have been filed with the law officer of the city within six months, after such cause of action shall have accrued.”

It is thus authoritatively settled that the service of. the notices required by the charter (Laws of 1901, chap. 466, § 261, as amd. by Laws of 1906, chap. 550, and Laws of 1907, chap. 677) and the act of 1886 are conditions precedent, which must be alleged and proved, and it is equally well settled :

1. That in a death case the cause of action is deemed to have accrued upon the appointment of the executor or administrator, and the time limited then begins to run.

In Crapo v. City of Syracuse (183 N. Y. 395), an action to recover for death by negligence, Chief Judge Cullen, said : “I am Of opinion that the action is one for personal injuries within the mean-. ing of chapter 572 of the Laws of 1886. * * * I am of opinion, however, that the plaintiff’s-cause of action did not arise until her appointment, as administratrix for the reason stated by Justice Beadley in Barnes v. City of Brooklyn (22 App. Div. 520), and that, therefore,, the notice required by the statute of 1886 was seasonably served and the action seasonably brought. * * * The limitations provided in the law of 1886 are not substitutional for the provisions of the Code, which are in no respect repealed, but cumulative. An action for personal injuries against a city of more than fifty thousand inhabitants must be brought in compliance not only with the statute of 1886 but with the provisions of the Code. Section 1902 of the Code requires an action by personal representatives to recover damages for their decedent’s death to be brought within two years after that death. This effectually cuts off stale claims. In the present case the' action was brought within the Code period.” Judge O’Brien in the same case stated the facts as follows: “ The intestate was killed while in the service of the defendant by an explosion of dynamite on the 22d of December, 1899. The plaintiff was appointed administratrix on the 8th day of May, 1901. This action was commenced on the 9th day of December, 1901, and the notice required by statute to -be served was not filed with the corporation counsel until the 25th day of June, 1901. It will be seen, therefore, that the statutory notice was filed with the defendant’s counsel witiiin two months after the plaintiff’s appointment' as administratrix. The action was commenced within twenty months after the accident and death and within five months after letters were issued. * * * By section 415 of the Code of Civil Procedure, it is provided that limitations must be computed from the time of - the accruing of the right to relief by action * * * to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.’ This is a plain provision that the right of action does not accrue until some one is in a position to bring and maintain the action, and the limitation must be. computed from that time up to'the time that the action is actually commenced. The notice which the statute'requires to be served_ within six months after the cause of action has accrued must contain a statement that the party giving the notice intends to com- • menee an action. The absence of such a statement vitiates the notice. (Curry v. City of Buffalo, 57 Hun, 25.) Who is to give the notice ? It is very obvious that inasmuch as no one can bring such an action except a personal representative of the decedent the notice must come from him, and of course he cannot give any such notice until his appointment. * * * These considerations, that are fairly déduced from a reading of the statute, and other statutes in pari materia, point clearly to the' conclusion that the cause of action does not accrue until the personal representative of the decedent lias been duly appointed.” Four of the learned judges, the question being squarely up, held that in a death case the cause of action did not accrue until the appointment of the administrator, but that section 1902 of the Code, giving a right of action, for death caused by' negligence to the executor or administrator, limited that right by express language: “ Such an action must be commenced within two years 'after the decedent's death."

2. That in cases of infancy the running of the Statute of Limitations of one year provided by chapter 572 of the Laws of 1886 is suspended by reason of the exception contained in section 396 of the Code of Civil Procedure.

In McKnight v. City of New York (186 N. Y. 35) the plaintiff was injured on the 15th of June, 1897, and the action was not .commenced until the 21st of January, 1902. It was conceded that ‘at the timé of the accident the plaintiff was an infant under the age of fourteen years. Said Willakd Babtlett, J.: “ The question-presented for determination is whether this action is barred by chapter 572 of the Laws of 1886. * * * It is the contention of the appellant that this statute was not operative against the plaintiff during his infancy by reason of the exception contained in section 396 of the Code of Civil Procedure, the material part of which reads as follows: ‘If a person, entitled to maintain an action specified in this title, (which includes negligence actions; see § 383, sub. 5) * * *■ is, at the time when the cause of action accrues * * * within the age -of twenty-one years, ■ * * * the time of. such a disability is nof a part of the time limited in this title for commencing the action,’ etc. Section 396 is found in chapter IY of the Code, which also contains in sectidn 414 the following declaration: ‘ The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 1. A case where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.’ * * * The effect of the one-year limitation prescribed by the act of 1886 was to amend by implication section 383 of the Code of Civil Procedure by reducing the period of limitation in actions for personal injuries due to negligence from three years to one. * * * In this change we can find no evidence of a legislative intent to deprive an injured infant in such cases of the benefit of the general exception contained in section 396 which prevents the Statute of Limitations from running against a claimant while the disability of infancy exists. * * * We hold that while chapter 572 of the Laws of 1886 created a special limitation in respect to negligence (personal injury) suits against a particular class of defendants, it left that special limitation, like the general limitations prescribed in chapter 4 of the Code of Civil Procedure, subject to suspension during the existence of any of the disabilities specified in section 396, one of which is infancy.”

In the case at bar, Mary Sim, the first administratrix, having been appointed on June 13, 1906, and having duly filed her notice of claim and intention to sue within the six months’ period limited by the statute as interpreted, supra, and having been examined by the representative of the city — so that one of the important purposes intended to be accomplished by the statute which required prompt notice was fulfilled, namely, to advise the city of the time, place and circumstances, so that it might investigate and prepare a defense — died on February 1, 1907, before she had instituted the action and before her time to sue under the act of 1886 had expired.

The plaintiff, who was not appointed administrator de bonis non‘ until August 5, 1907, began this action on September 19,1907, and claims to come within section 402 of the Code of Civil Procedure, which provides: “ If a person entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an aetion may be commenced by his representative after the expiration of that time and within one year after his death.” It must be admitted that he does not come within the literal wording "of that section. The person who died, entitled to maintain an action, was Mary Sim. The plaintiff is not the administrator de bonis non of Mary Sim but of Thomas H. Sim, the original decedent. This cause of action is, however, peculiarly the creature of statute. It is itself a representative action; it can only be brought by the executor or administrator of a decedent; and the recovery is exclusively for the benefit of the decedent’s husband or wife and next of kin,.and when cob lected the damages must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration, subject to the deductions prescribed by the statute. (Code Civ. Proc. §§ 1902, 1903.)

There is no doubt that the cause of action survives. Matter of Meekin v. B. H. R. R. Co: (164 N. Y. 145) was an appeal from an order modifying and affirming as modified an order of the Special Term reviving and continuing an action which had been brought by’ Charles Meekin as administrator of his deceased daughter against the defendant to recover damages for her death. After issue had been, joined and the action placed on the calendar for trial Charles Meekin died. Upon a petition showing the foregoing facts Clara Meekin applied for an order to revive and continue the action in her name as plaintiff. •The Appellate Division certified the following'question : “ Does an action to recover damages for negligently causing the death of his intestate survive the death of the administrator, who was also the father and sole next of kin of the deceased, where such intestate left her surviving other persons, who, had such father not survived said intestate, would have been next of kin of such deceased?.” The court said : As, in the language of the statute, ‘ the damages awarded to the plaintiff ’ are to be estimated on the basis of a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person -or persons for whose benefit the action is brought,’ we think the injury is for a Wrong done 1 to- the property* rights or interests’ of the beneficiary, and that, hence, the cause of action survives, the recovery, if any, being a part of his estate, the same as it would have been if collected and paid over before his death. The order appealed from should, therefore, be affirmed, with costs, and the question certified to us answered in the affirmative.”

Therefore, as this is a' representative suit; as it could only be instituted and maintained by a representative of the estate of Thomas H. Sim; as such representative complied with all the con- ’ ditions precedent and then died before the expiration of .the time limited .for the commencement of the suit.; and the cause of action, survived and a new representative of the estate had been appointed who commenced this suit within one year after the death of the prior representative and within the two years from the time of the death of the decedent as limited by section 1902 of the Code; it seems to me we are entirely within the spirit of the interpretation by the Court of Appeals of this statute of 1886, in connection with the provisions of the Code of Civil Procedure, as illustrated in the cases cited supra, in holding that this action was commenced in time.

It follows, therefore, that the exceptions should' be sustained and a new trial ordered, with costs to the plaintiff to abide the event.

McLaughlin and Miller, JJ., concurred; Ingeaham, P. J., and Dowling, J., dissented.

Ingraham, P. J.. (dissenting):

By section 1 of chapter 572 of the Laws of 1886 the time within which this action must have been commenced was one year after the cause of action accrued, and the cause of action accrued upon the appointment of Mary Sim, widow of the decedent, as his administratrix on June 13,1906.

Under the express provisions of the statute the administratrix had one year after her appointment to commence an action, and unless that time was extended by some other provision of law the cause of action, not having been commenced within one year after it accrued, the Statute of Limitations had run. Tlie Court of Appeals have held in Matter of Meekin v. B. H. R. R. Co. (164 N. Y. 145) that the injury is for a wrong done to the property, rights or interests of the decedent’s next of kin and, therefore, the cause of action survives the death of the administratrix who commenced the action. And that court also held in McKnight v. City of New York (186 N. Y. 35) that the effect of the one-year limitation prescribed by the act of 1886 was to amend by implication section 383 of the Code of Civil Procedure by reducing the period of limitation in actions for personal injuries due to negligence against a city having a population of 50,000 inhabitants or over from three years to one, and that the limitation prescribed was, therefore, subject,to suspension during the existence of any of the disabilities specified in section 396 of the Code of Civil Procedure. Thus, if Mary Sim had as administratrix commenced an action within the year, the fact of her subsequent death would not abate the action, but it should be continued not by her personal representative, hut by a new administratrix of the estate of the decedent whose death gave rise to the cause of action. Hone of the disabilities mentioned in section 396 of the Code of Civil Procedure existed, and, therefore, the time within which the action must be brought was not suspended by reason of the provisions of this section. The plaintiff, however, claims that this case comes within section 402 of the Code of Civil Procedure, and that claim is upheld by a majority of the court. . The prevailing opinion, however, admits that the plaintiff does not come within the literal wording of that section, and it seems to me that he does not come within the spirit or intent of the section. It is there provided that if a person entitled to maintain an action ‘ dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative after the expiration of that time and within one year after his death.” The object of this provision is clearly to provide a time for the appointment of a personal representative of a deceased person who had a right to maintain an action,' so that in a case where the statute had not run at the time of the death of a person entitled to maintain an action it could be brought by his personal representative. The section does, not in express, terms extend the time within which an action may be brought, but provides that in case of. the death of a person entitled to maintain an action it may be brought by the personal representative of the deceased within one year after his death. By its terms it only applies to a cause of action which had vested in the personal representative of the deceased person to whom the right cause of action belonged. As before stated, this provision of section 402 of the Code of Civil Procedure only allows the representative of a deceased person to commence an action within one year after the death of the person entitled to maintain it. Mary Sim, the deceased, was authorized to commence the action in a representative capacity as the administratrix of the person whose death gave rise to the cause of action, and for the benefit of the widow and next of kin of the decedent. Her personal representatives have not sought to avail, themselves of the provisions of this statute to commence the action. There is. nothing in the statute which authorizes the action to be brought after a period of one year from the timé the cause of action accrued by a substituted administrator. The administrator of the estate of Thomas H. Sim seeks to maintain this action commenced more than one year after the cause of action accrued under the provision of a section of the Code .which authorizes an action to be commenced after that time by the personal representative of' Mary Sim.

It seems to me that this section' is not at all applicable, and I

think the judgmént should be affirmed.

\

Dowling, J., concurred.

Exceptions sustained and new trial ordered, with costs to plaintiff to abide event. Settle order on-notice.  