
    New York City Court.
    
      Special Term
    
    May, 1883.
    HUNT against PEAKE.
    Statues of limitations as applicable to legal represenatives or heir at law.
    Section 392 of the Code of Civil Procedure does not apply to a case where an executor or administrator qualifies shortly after the
    
      death of the decedent. When the statute of limitations has once attached, it is not revived by this section.
   McAdam, J.

Prior to section 392 of the Code of Civil Procedure, the statute of limitations began to run only from the grant of letters testamentary or of administration, and this upon the ground that until the granting of letters there was no person in being capable of suing, and in consequence the limitation was in some cases indefinitely postponed (5 Barb. 393; 6 Lans. 296; 61 N. Y. 497). Section 392, which is new, changed this indefinite rule, by providing that for the purpose of the statute of limitations letters are deemed to have been issued within six years after the death of the testator or intestate.” If, therefore, letters have in fact not been issued, and the action is so barred by this new provision that no executor or administrator who subsequently qualifies, can in consequence maintain an action, “ Any of the next of kin, legatees or creditors, who at the time of the transaction upon which it might have been founded, was within the age of twenty-one years . . . may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum . . . as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator.” This section does not apply to a case like the present, where an administratrix qualified within two months after the death of the intestate, and by her neglect to prosecute, the statute of limitations has once legally attached, for there is nothing in section 392 (supra) which revives or transfers the lost cause of action to the next of kin or legatees. The cause of action passed to the administratrix as soon as she qualified, and she holds legal title to it still, unless it be lost, as before suggested, by her neglect to sue, and its consequent discharge by the statute. The neglect of the administratrix might have been sufficient to charge her personally with the debt, upon her final accounting before the surrogate, but it does not furnish the plaintiff with a cause of action against the defendant.

Demurrer sustained.

See also Viets v. Union Nat. Bk., 101 N. Y. 564.  