
    Church et al. v. Olendorf et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    October, 1888.)
    1. Limitation of Actions—Running of Statute—Appointment of Administrator.
    Under Code Civil Proc. N. Y. § 403, providing that the term of 18 months following the death of a debtor is not part of the time limited for the commencement of an action against his representative, and that if letters are not issued within the state at least 6 months before the action would be barred by lapse of time as so extended, then the term of one year after letters are issued shall also be excluded from the operation of the statute, the time for bringing an action against an administrator appointed more than 6 months before the debt would be barred, is only extended 18 months, and not 2 years and 6 months.
    
      3. Same—Stay of Proceedings—Change of Law.
    Under Code Civil Proc. N. Y. § 406, which provides that the time during which the institution of a suit is stayed by statutory prohibition shall be deducted from the period of limitation, the statute does not begin to run against a special proceeding to sell land for the debt of an intestate who died before September 1, 1880, and whose administrator had not been then appointed; as art. 3 of said Code, which took effect on that day, by section 3750, changed the law in relation to such proceedings, which before that time could not be brought until the administrator had accounted.
    3. Same—Extension of Time.
    Said section 3750, which provides that a creditor may institute such a proceeding within three years after the issue of letters of administration, does not extend the statute'of limitations indefinitely, so that such proceedings may be instituted within that time, regardless of the period that has elapsed before administration was granted.
    Appeal from surrogate’s court, Chenango county.
    Special proceeding by Charles W. Olendorf to sell the land of Ella B. Church, deceased, for a debt due him. The parties were Samuel W. Church snd George W. Ray, special guardian for said Samuel W. Church, an infant heir of the deceased, and John W. Church, her administrator, the said John W. Church in his own right, and one. George N. Barnes. Decree of sale, and -the infant and his guardian appeal.
    Argued before Hardin, P. J., and Martin and Follett, JJ.
    
      George W. Ray, for appellants. I. 8. & H. I). Newton, for respondent •Olendorf.
   Martin, J.

This was a proceeding for the sale of the real estate of the decedent to pay her debts. It was instituted by the respondent Olendorf, as r creditor of the decedent, under the provisions of title 5, c. 18, art. 2, Code Civil Proc. The defense interposed and relied upon by the appellant was the statute of limitations. The debt which was the basis of this proceeding, so far rs the questions involved on this appeal are concerned, was secured by a note jjiven by the decedent to the respondent, June 12, 1878, upon which there was unpaid the sum of $1,413.80, besides interest. This note was payable on •demand. No payments were ever made thereon by the decedent. The decedent died intestate, November 13, 1878, at Norwich, N. Y., where she then resided. She left her surviving the appellant, her only child, next of kin Rnd heir at law, and her husband, John W. Church. Her personal estate did not exceed in value the sum of $150. At the time of her death she had .an interest in certain real estate which is now of the value of $2,500. Letters •of administration on her estate were duly issued by the surrogate’s court of Chenango county to her husband, March 12,1884. The respondent Olendorf never filed any petition for the appointment of an administrator of the estate of the decedent, nor instituted any other proceeding or action in relation to her •estate, or to enforce his debt against her estate or property, until he commenced this proceeding, March 7, 1887 There was no litigation in relation to this claim; it was adinitted by the administrator. The administrator never had any accounting, except to give evidence on the trial in' this proceeding, which was taken as his account. It was 5 months and 1 day from the date •of the note to the day of the decedent’s death. Five years, 3 months, and 29 days elapsed between the time of her death and the issuing of letters of administration. It was 2 years, 11 months, and 25 days from the time when said letters were issued to the commencement of this proceeding. From the time when the note was given to the commencement of this proceeding was 8 years, 8 months, and 25 days. From the decedent’s death to September 1,1880, was 1 year, 9 months, and 13 days; and from September 1, 1880, to the commencement of this proceeding, was 6 years, 7 months, and 5 days.

The only question here involved is whether the respondent’s remedy to enforce the claim upon which this proceeding was based was barred by the statute of limitations. This was a special proceeding. Code Civil Proc. §§ 2755, 3334. The statute of limitations applies to special proceedings as well .as actions. Code Civil Proc. § 414. The statute of limitations commenced to .run from the date of the note. Wheeler v. Warner, 47 N. Y. 519; McMullen v. Rafferty, 89 N. Y. 456, 458. The respondent’s claim being founded upon .an express contract, other than a judgment or sealed instrument, the six-years limitation was applicable. Code Civil Proc. § 382. The statute had eom■.menced to run before the death of the decedent. It is a general rule, applicable to limitations of actions, that when the statute has once commenced to run it will not cease by reason of any subsequent event which is not within .some saving provision of the statute. XVood, Lim. § 8. Where the statute ■ of limitations has begun to run during the life of the debtor, it does not cease running during the period which may elapse between his death and the granting of administration upon his estate, save that 18 months after the death is, by statute, not to be deemed a part of the time limited. Sanford v. Sanford, 62 N. Y. 553.

As we have already seen, 8 years, 8 months, and 25 days had elapsed between the time when the note was given and the commencement of this proceeding. It is therefore quite manifest that the respondent’s remedy for the enforcement of this claim was barred when this proceeding was instituted, unless there is some provision ofstatute w'hieh either extends the period of limitation in such a case, or in some other way protects this claim from the operation of the six-years limitation. The Code of Civil Procedure provides that “the term of • eighteen months after the death, within the state, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testament.ary or letters of administration upon his estate are not issued within the state at least six months before the,expiration of the time to bring the action, -as extended by the foregoing provision of this section, the term of one year after such letters are issued is nota partofthe time limited for the commencement of such an action.” Code Civil Proc. § 403. If this section of the Code is applicable to this proceeding, and we think it is, then it is quite obvious that the 18 months following the death of the decedent formed no part of the 6-years limitation. In other words, by this provision of the statute the time at the expiration of which the respondent’s claim would have become barred was extended from 6 years to 7 years and 6 months. The learned surrogate not only held that the statute did not run during the 18 months following the death of the decedent, but, as' appears from his opinion, he also .held that it did not run during the year succeeding the issuing of letters. In this latter conclusion we think he was wrong. The provision of section 403, upon which he based his conclusion, is, in effect, that if letters are not issued .at least 6 months before the expiration of the time to bring the action, as extended by the 18-months provision, then the term of one year after letters are issued is not apart of the time limited. The learned’surrogate construed this provision of the statute as though it had read, “In case letters are not issued within 6 months before the expiration of the 18-months extension of the 6-years statute of limitations, then the term of one year after such letters are issued is not part or the time limited.” Such is not the statute, nor do we think such a proper construction of it. XVe think it is only in a case where the letters are not issued 6 months or more before the expiration of the time (including the 18 months) within which the action may be brought that the additional year is given; and therefore, to have entitled the respondent to such additional time, the letters must have been issued wdthin 6’months before the expiration of the time limited for the commencement of such proceeding. Such was not the case here. Here the letters were issued nearly 2 years before the expiration of the period of limitation. Hence we areof theopinion • that the time was extended by section 403 for the period of 18 months, and not .for the period of 2 years and 6 months, as was held by the court below.

The Code also provides that, where the commencement of an action has beem stayed by statutory prohibition, the time of the continuance of the stay is not. a part of the time limited for the commencement of the action. Code Civil. Proe. § 406. At the time of Mrs. Church’s death, article 2 of the Code of Civil Procedure had not been passed, and therefore the rights of the respondent were governed by the statutes then in force, until September 1, 1880, when, the second part of the Code of Civil Procedure went into effect. As the law stood prior to September 1, 1880, the respondent could not have commenced such a proceeding as this until after the executor or administrator had rendered, his account; and thus such a proceeding was stayed by statutory prohibition, until September 1,1880. Mead v. Jenkins, 951ST. T. 31. The former statute was repealed by chapter 245, Laws 1880, and such proceedings are now and. have since been controlled by the Code of Civil Procedure. Section 2750 confers upon the creditor the right to institute such a proceeding at any time-after letters are granted, and no previous accounting is required. The time-which elapsed between the death of the decedent and September 1,1880, cannot, therefore, be considered as a part of the time limited for the commencement of this proceeding; but as it included the 18 months given by the former-statute, and by section 403 of the Code of Civil Procedure, the respondent is entitled to exclude only the time between the decedent’s death and September-1, 1880. Excluding that time, still more than six years had elapsed before the commencement of this proceeding. Therefore, unless there is some other-statutory prohibition or extension of the time within which to commence this-proceeding, the respondent’s remedy was barred, and the surrogate’s court erred in making the decree appealed from.

If correctly understood, the claim of the respondent is that section 2750-provides that at any time within three years after letters are first duly granted within the state upon the estate of a decedent a creditor may institute such a. proceeding, and that that provision, in effect, extends the statute of limitations indefinitely, so that the creditor may institute such a proceeding at any time within three years after letters are issued, regardless of the period of time-that may have elapsed before such letters were issued. We do not think that, this claim can be sustained. We think such was not the intent of the statute, but that its purpose was to restrict the right of the creditor or representative to institute such a proceeding to the period of three years after letters were-granted, and not to extend the period of limitation. Chapman v. Fonda, 24. Hun, 131; Sanford v. Sanford, 62 N. Y. 553. We are of the opinion that the respondent’s remedy by this proceeding was barred by the statute of-limitations, and that the surrogate’s court erred in granting the decree appealed, from. For this error the decision and decree appealed from should be reversed,, and a new trial granted, with costs of the appeal to abide the final award of costs.

Hardin, P. J., concurs. Follett, J., not voting.  