
    Samuel W. Church by George W. Ray as Special Guardian, App’lt, v. Charles W. Olerdorf et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September, 1888.)
    
    1. Special proceedings—Proceeding eor the sale oe real estate oe a DECEDENT TO PAT DEBTS IS A SPECIAL PROCEEDING—CODE ClV. PRO., SECS. 3334, 2755.
    This proceeding was brought by a creditor of a decedent for the sale of her real estate to pay her debts. The debt which was the basis of the-proceedings was secured by a note given by the decedent to the respondent June 12, 1878. This note was payable on demand, but no payments-were ever made thereon by the decedent. The decedent died intestate-November 13, 1878, at her place of residence in this state, and letters of administration were duly issued to her husband upon her estate on March 12, 1884. The creditor, at whose instance the proceeding was instituted, 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. The claim was admitted by the administrator without litigation, and his only accounting was his evidence given on this proceeding, which was accepted as such. Pive months and one day elapsed from the date of the note to the day of the decedent’s death; five years, three months and twenty-nine days elapsed between'the time of her death and the issuance of letters of administration, and two years, eleven months and twenty-five days from the time when such letters were issued to the commencement of this proceeding. Prom the delivery of the note to the commencement of this proceeding was eight years, eight months and twenty-five days. Prom the decedent’s death to September 1, 1880, was one year, nine months and thirteen days; and from September 1, 1880, to the commencement of this proceeding was six years, seven months and five days. I-Ield, that this proceeding was a special proceeding.
    2 Same—Statute oe limitations applies to—Code Civ. Pro., sec. 414. Held, That the statute of limitations apulies to special proceedings-as-well as actions.
    3. Same—Commencement oe operation.
    
      Hell, that the statute of limitations began to run from the date of the-note.
    4. Same—Six tears’limitation—To what applicable—Code Civ. Pro., sec. 382.
    
      Held, that the claim based upon the note being one upon an express contract other than a judgment or sealed instrument, the six years’ limitation was applicable.
    5. Same—When set in operation during liee-time oe debtor is not-INTERRUPTED BT DEATH OE DEBTOR — EEEECT OE CODE ClV. PRO., § 403.
    
      Held, that the statute of limitations having commenced to run during-the' life-time of the debtor did not cease rnnning during the period between the death of the debtor and the granting of administration upon his estate, save that eighteen months after the death of the debtor within the state, is by the statute not to be deemed a part of the time limited.
    8. Same—When operation of statute not stayed for one year after ISSUANCE OF LETTERS OF ADMINISTRATION UPON ESTATE OF DEBTOR BY Code Oiv. Pro., § 403.
    It is further provided by Code Civil Procedure, section 403, that if letters testamentary or of administration upon the estate of a decedent are not issued within the state at le-.st six months before the time to bring the action as extended by the foregoing provision, then the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action. Held, that this provision was applicable to the present proceeding, but that it did not in the present case extend the time within which the creditor might institute the proceeding for a year from the issuance of letters of administration as the letters were issued more than six months before the lapse of the time extended by the former provision.
    7. Same—Code Civ. Pro., § 406—When the period during which the OPERATION OF THE STATUTE IS STAYED BY ONE STATUTE IS INCLUDED BY THE PERIOD DURING WHICH ITS OPERATION IS STAYED BY ANOTHER ONLY IF THE LAPSE CAN BE RECKONED.
    It is provided by Code Civil Procedure, section 406, that where the commencement of an action has been 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. At the time of the death of the decedent the statute relative to the subject did net permit the commencement of a proceeding such as the present until after the executor or administrator had rendered his account. This provision was repealed September 1, 1880, and proceedings such as the one in question may by authority of Code Civil Procedure, section 2750, he instituted at any time within three years after the issuance of letters, no previous accounting being required. Rel i, that the time which elapsed between the death of the decedent and September 1, 1880, could not be considered as a part of the time limited for the commencement of this proceeding, hut that as it included the eighteen months given by Code Civil Procedure, section 403, it alone could he excluded.
    7. Same—Operation of not stayed by Code Civ. Pro., § 2750.
    
      Held, that the effect of Code Civil Procedure, section 2750, was not to stay the operation of the statute of limitations, but to limit the period subsequent to the issuance of letters within which such proceedings might he instituted.
    8. Same—When a proceeding is barred by.
    Held, that the proceeding in question was barred by the operation of the statute of limitations.
    This was an appeal from a decree of tlie surrogate’s court of Chenango county, which directed the sale of the real estate of Ella B. Church, deceased, for the payment of a debt of the respondent, Charles W. Olendorf, which was established at the sum of $3,176.56. The above was the only claim which was allowed.
    
      George W. Ray, for appl’t; I. S. & H. D. Newton, for resp’t, 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 a creditor of the decedent, under the provisions of title 5, chapter 18, part 2 of the Code of Civil Procedure. 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 as-the questions involved on this appeal are concerned, was secured by a note given 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 and 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 admitted 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 five months and one day from the date of the note-to the day of the decedent’s death. Five years, three months and twenty-nine days, elapsed between the time of' her death and the issuing of letters of administration. It was two years eleven months and twenty-five days from the. time when such letters were issued to the commencement of this proceeding. From the time when the note was given to the commencement of this proceeding, was eight years, eight months and twenty-five days. From the decedent’s death to September 1, 1880, was one year, nine months and-thirteen days; and from September 1, 1880, to the commencement of this proceeding, was six years, seven months and five 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, C. P., 3334, 2755).

The statute of limitations applies to special proceedings as well as actions. Code Civil Pro., § 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 id., 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 Pro., § -38S}.. The statute had'commenced-to rurt 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. Wood on Limitations, 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 eighteen 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, eight years, eight months and twenty-five 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 of statute which 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, and that if letters testamentary, 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, then the term of one year after such letters are issued is not a part of the time limited for-the commencement of such an action. Code Civil Pro., § 403. If this section of the Code is applicable to this proceeding, and we think it is, then it is quite obvious that the eighteen months following the death of the decedent formed no part of the six 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 six years to seven years and six months.

The learned surrogate not only held that the statute did not run during the eighteen 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 six months before the expiration of the time to bring the action, as extended by the eighteen months provision, then the term of one year after letters are issued is not a part 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 six months before the expiration of the eighteen months’ extension of the six years’ statute of limitations, then the term of one year after such letters are issued is not part of the time limited.

Such is not the statute, nor do we think such a proper construction of it. We think it is only in a case where the letters are not issued six months or more before the expiration of the time (including the eighteen 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 within six 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 two years before the expiration of the period of limitation. Hence, we are of the opinion that the time was extended by section 403, for the period of eighteen months, and not for the period of two years and six months, as was held by the court below.

The Code also provides that where the commencement of an action has been 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 Civ. Pro., 406. At the time of Mrs. Church’s death, part 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, 95 N. Y., 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, hut as it included the eighteen 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, and still more than six years had elapsed before the commencement of this proceeding; therefore, unless there is some other statutory pr.ohibition 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. Decree of surrogate’s court reversed, and new trial granted, with costs of the appeal to abide the final award of costs.

Hardin, P. J., concurs.  