
    Anna Agresta, as Administratrix, etc., of Gaetano Agresta, Deceased, Appellant, v. Federal Steam Navigation Company of England, Respondent.
    Second Department,
    October 22, 1915.
    Pleading — action to recover for death caused by a wrongful act — failure of plaintiff to allege that action was commenced within two years — limitation of action — judgment upon pleadings.
    The complaint in an action to recover for death caused by a wrongful act need not allege that the action is commenced within two years after the decedent’s death, for said period prescribed by the statute is a limitation upon the remedy only and is not a condition precedent; the defense must be taken by answer.
    Hence, a defendant is not entitled to judgment on the pleadings because the complaint in such action does not allege that it was commenced within two years, even though that fact be shown by the date of the summons and by the defendant’s affidavit.
    The summons and the affidavit are not pleadings and should not be considered upon a motion under section 547 of the Code of Civil Procedure.
    Appeal by the plaintiff, Anna Agresta, as administratrix, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of May, 1909, granting defendant’s motion for judgment on the pleadings after the service of an answer, and also from the judgment entered thereon in said clerk’s office on the 9th day of June, 1909.
    
      Frederick W. Sparks, for the appellant.
    
      Ray Rood Allen, for the respondent.
   Carr, J.:

This is an appeal from an order of the Special Term, entered May 25, 1909, directing judgment for the defendant upon the pleadings. The appeal was taken in time, but not prosecuted diligently. This court, however, denied a motion, very recently, to dismiss the appeal (See 169 App. Div. 963; 170 id. —). The action was brought to recover damages resulting from the death of Agresta through the alleged negligence of the defendant. The complaint contained no allegation that the action had been begun within two years after the cause of action arose. The defendant, moved for judgment upon the pleadings and submitted the summons and an affidavit showing the beginning of the action some six years after the death of the decedent. The order directing judgment recites the summons and the affidavit. The theory of the Special Term must have been that the complaint should have alleged the beginning of an action within two years. The appellant relies upon the recent decision of the Court of Appeals in Sharrow v. Inland Lines, Ltd. (214 N. Y. 101). That case holds that the provision of section 1902 of the Code of Civil Procedure, requiring that actions of this nature must be brought within two years after the death of the decedent, constituted a limitation upon the remedy and not a condition precedent. The respondent urges, however, that as the summons, which was dated some six years after the death of the decedent, was before the court, it was evident that the action had been begun after the limitation matured. This is apart from the main question, for a limitation to be available as a defense must be pleaded. The summons and affidavit on the motion are not pleadings and should not be considered upon a motion under section 547 of the Code of Civil Procedure. Our decision in Pernisi v. Schmalz’ Sons, Incorporated (142 App. Div. 53) is cited by the respondent to the effect that on the motion at Special Term the court had the right to consider the date of the summons and the affidavit as to the time of its service, if the parties consented to such consideration. Here the motion was made “upon the pleadings in this action, and the annexed affidavit of Everett Hasten,” etc. No reference to the summons was made in the notice of motion. It is true that the order recites the summons. But this may be considered surplusage. The question here involved was not passed upon, necessarily, in the Pernisi case, although there are some obiter expressions of this court in that opinion which may seem to favor the contention of the respondent. Likewise, the legal theory of the Pernisi opinion was not approved in Sharrow v. Inland Lines Ltd. (supra). A statutory provision similar to the one now before us was considered by this court in Arnold v. Village of North Tarrytown (137 App. Div. 68), and was held to he a limitation upon the remedy. That decision was affirmed in the Court of Appeals expressly upon the opinion of this court (203 N. Y. 536).

We think that the order appealed from must be reversed and the motion denied, without costs, but in view of the long delay in prosecuting this appeal, and the fact that the order was made in reliance upon precedents not then disturbed, the reversal is without prejudice to any application which the defendant may see fit to make for leave to serve an amended answer pleading the limitation.

Jerks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Order reversed and motion denied, without costs, hut in view of the long delay in prosecuting this appeal, and the fact that the order was made in reliance upon precedents not then disturbed, the reversal is without prejudice to any application which the defendant may see fit to make for leave to serve an amended answer pleading the limitation.  