
    Riley v. Riley et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1892.)
    Limitations—Commencement on Action—Service.
    Code Civil Proc. § 399, relative to the commencement of actions and the arrest of the statute of limitations, declares that, in order to entitle a plaintiff to the benefit of such section, the delivery to an officer of the summons must be followed by service on defendant. Meld that, though the death of defendant after the delivery to an officer of the summons may render impossible service on defendant, plaintiff must, in order to obtain the benefit of such section, continue the action in some manner against the personal representatives of defendant, and is not entitled to an entirely new action after the expiration of the period of limitation. Bank v. Wet-more, 36 N. E. Rep. 548, 134 N. Y. 348, distinguished.
    Appeal from special term, Monroe county.
    Action by Mary E. Biley against Ashbel W. Biley and Anna Bently, executors of Ashbel W. Biley, deceased, to recover on a claim against the deceased. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    On the 31st day of March, 1882, there was paid to the plaintiff’s husband, Gen-. Ashbel W. Biley, now deceased, for the plaintiff, the sum of $2,500. The general died on the 3d of April, 1888, never having paid, the money, or any part thereof, to the plaintiff. On tile 30th day of March, 1888, the plaintiff caused to be issued and delivered to the sheriff of Monroe county, to be served upon her husband, a summons in an action in which she was plaintiff and her husband was defendant, with the intention of commencing an action to recover the claim mentioned. The sheriff went to the dwelling house of Gen. Biley, in the city of Rochester, on the said 30th day of March, with a view of serving the summons upon him. The general was seriously sick at the time, and his physician in attendance refused to permit the service of the summons, and the general died on the 3d day of April following, without service of the summons having been made upon him. On the 24th day of September, 1888, a- motion was made at special term on behalf of the plaintiff to revive the action as against the defendant’s executors. The motion was denied. No appeal was taken from the order. Nothing further was done to prosecute the claim until the month of October, 1889, when this action was commenced. The action was duly referred and tried, and the plaintiff’s complaint was dismissed by the referee, and this appeal was taken from the judgment entered thereon.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Walter S. Hubbell, for appellant. F. L. tb J. E. Durand, for respondents.
   Lewis, J.

Plaintiff’s cause of action accrued when the money was paid'

for her to her husband, March 81, 1882; and, unless the running of the statute was arrested by the delivery of the summons to the sheriff, the statute had run against the claim before the death of Gen. Biley. Mills v. Mills, 115 N. Y. 80, 21 N. E. Rep. 714. The delivery of the summons to the sheriff was equivalent to the commencement of an action within the provisions of the Code limiting the time for the commencing of actions, and would have arrested the running of the statute had the conditions of section 399 of the Code of Civil Procedure been complied with by the personal service of the summons upon the defendant sought to be charged, or by the first publication of the summons pursuant to an order for service upon him in that manner within 60 days after the expiration of the time limited for the actual commencement of the action. The death of Gen. Riley made a literal compliance with these conditions impossible, and it is the contention of the plaintiff that, because of such impossibility, the delivery of the summons arrested the running of the statute, and that the plaintiff should be excused from a compliance with the conditions. It is held in Estes v. Wilcox, 67 N. Y. 264; Adsit v. Butler, 87 N. Y. 585; Bank v. Wetmore, 124 N. Y. 248, 26 N. E. Rep. 548,—that a compliance with all the provisions of section 399 is indispensable in order to prevent the statute from running against the claim. The plaintiff evidently took this view of the situation, as is evidenced by her attempt to revive the action against these defendants as executors. When defeated in her motion, she abandoned that proceeding, and afterwards brought a new action directly against the defendant’s executors. When Gen. Biley died, the summons was in the hands of the sheriff for service; it had an actual potential existence. Gen. Riley was the sole defendant named. Section 757 of the Code provides that, in case of the death of a sole defendant, where the cause of action survives, the court must, upon a motion, allow the action to be continued against his representative or successor in interest. Whether it can be held that Gen. Biley was a defendant, within the meaning of this section before the service of the summons upon him may be doubted; but it must be held, we think, that the only means of relief the plaintiff had, if she had any, lay in the continuance of the proceeding to revive the action. The action in which the attempted service was made must in some manner have been continued to avail the plaintiff anything in arresting the running of the statute. Section 399 expressly provides that, in order to entitle a plaintiff to the benefit of the section, the delivery of the summons to an officer must be followed by the personal service upon the defendant, or by the publication of the summons. It was held in Clare v. Lockard, 122 N. Y. 263, 25 N. E. Rep. 391, that a substituted service within the 60 days is equivalent to the personal service or publication of the summons within the meaning of section 399. It was held in the case of Palmer v. Ensign, by the superior court of Buffalo, (opinion of the court by Judge James M. Smith,) that when a defendant dies after the delivery of the summons to the sheriff, and before it is served on the defendant, the action may be continued against his personal representatives. A synopsis of this opinion may be found in 19 Alb. Law J. 399. The case in 124 N. Y., 26 N. E. Rep. supra, to which our attention is called by the appellant, is not an authority for the plaintiff. It has no application to an action at law. We see no way to give the plaintiff relief, and the judgment appealed from should be affirmed. All concur.  