
    In the Estate of Isaac Van Dyke, deceased.
    
      (Surrogate's Court of New York County,
    
    
      Filed December 15, 1886)
    
    1. Statute of Limitations—Six years limitation—8 R S. (3d ed ), page 394, REPEALED BY CODE OF" PROCEDURE, § 91—PRESERVED IN CODE Civ. Pro., § 382.
    The six years limitation prescribed by 2 R. S. (3d ed.), page 394, foi the bringing of actions, was kept alive after its repeal by Code of Procedure, § 91, and is still preserved in Code Civil Procedure, § 382, now in force.
    2 Same—Code Civ Pro., § 382—With certain exceptions made applicable by Code Civ. Pro., chap 4, tit. 3, § 414, to all civil actions • AND SPECIAL PROCEEDINGS.
    The rules of limitation contained in Code Civ. Pro., § 382, are, save in certain cases, by Code Civ. Pro., chap. 4, tit. 3, § 414, made applicable to all civil actions and special proceedings. It is immaterial whether the cause of action may have arisen before or after the enactment of Code Civil Procedure, chap. 4, so that'rights to relief already extinguished are not thereby revived.
    3. Same—Applicable to proceedings under Code Civ. Pro., § 2606.
    This limitation of the period for the commencement of an action is applicable to a proceeding brought by one of the next of kin of a decedent under the authority of Code Civ. Pro., § 2606, for an order compelling an accounting from the representative of the estate of a party since deceased, who was the administrator of this decedent’s estate.
    4. Same—Limitation—When demand necessary to perfect cause op ACTION.
    Code Civ. Pro., § 410, postpones the commencement of the time within which an action or special proceeding can be instituted in cases where a demand is necessary to entitle a person to maintain such action or proceeding until the time when the right to make such demand is complete.
    5. Same—Actions to recover legacy, etc.—2 R. S., part 2, chap. 6, tit. 5, § 9.
    Until the adoption of the second part of Code Civil Procedure, it was provided by section 9, title 5, chap. 6, part 2, R. S., that an action or special proceeding to recover a legacy or distributive share would not lie until after reasonable demand for payment, and such demand could not be made until the expiration of a year from the granting of letters'testamentary or letters of administration.
    8. Same—Code Civ. Pro., § 1819, substituted foe.
    It is provided by Code ( ivil Procedure, § 1819, that if, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses upon derpand to pay a legacy or distributive share, the person entitled thereto may maintain such action against him as the case requires. But, for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before. This is a substitute for section 9, title 5, chap. 6, part 2, R. S.
    7. Same—What cases excepted from operation of Code Civ. Pro., § 1819—Code Civ. Pro., § 3352—Laws 1880, chap. 245, § 3, sued. 2.
    The effect of Code Civ. Pro., § 8352, and Laws 1880, chap. 245, § 3, subd. 2, is to exempt from the operation of Code Civ. Pro., § 1819, those cases, and only those, in which the Statute of Limitations had accrued before it became law.
    8. Same—Limitations—Code Crv. Pro., §§ 1819, 2606
    
      Held, That in a case under Code Civ. Pro , § 2606, which arose after the enactment of § 1819, the next of kin might compel an accounting, the final account of the administrator not having been judicially settled, although the ordinary period limited for the commencement of an action had elapsed, in addition to the year computed from the granting of letter of administration. •
    
      Wm. S. Hall, for Erna Hyde, petitioner; Alexander MelTiado, for Lillie Sims, petitioner; Edward G. Black, for James 0. Van Dyke, adm’r, etc., of Michael Van Dyke, dec’d, resp’t.
   Rollins, S.

This is a proceeding brought by one of the next of kin of Isaac Van Dyke, deceased, under section 2606 of the Code of Civil Procedure, for an order compelling an accounting from the representative of the estate of Michael M. Van Dyke, deceased, who was in his life-time the administrator of the estate of this decedent.

Isaac Van Dyke died on August 18, 1874. Letters of administration upon his estate were issued to Michael M. Van Dyke on September 15, 1874. On September 11, 1885, Michael died, leaving a will which was thereafter admitted to probate, and an estate whereof this respondent was, on October 26, 1885, appointed administrator c. t. a.

The petition by which the present proceeding was se„ on foot was filed on September 16, 1886. The respondent insists by his answer that the petitioner’s claim has not been capable of enforcement since September 15, 1881, seven years after the issuance of letters to this decedent’s administrator.

That the statute limiting the period for the commencement of an “action” for obtaining the relief here sought, <or other relief of kindred character, is applicable to such a proceeding as the one at bar is well settled. McCartee v. Camel, 1 Barb. Ch., 455, 465; Clark v. Ford, 1 Abb. Ct. of App. Dec., 359; Mead v. Jenkins, 95 N. Y., 31; Carman v.. Brown, 4 Dem., 96; Warren, v. Paff, 4 Brad., 260; Martin v. Gage, 9 N. Y., 398; Clock V. Chedeagne, 10 Hun, 97; Cole v. Terpenning, 25 Hun, 482; Smith v. Remington, 42. Barb., 75; Am. Bible Society v. Hebard, 51 Barb., 552, 570; Loder v. Hatfield, 71 N. Y., 92; House v. Agate, 3 Redf. 307; Drake v. Wilkie, 30 Hun, 537; Butler v. Johnson, 41 Hun, 206; Foster v. Town, 2 Dem., 333.

The six years limitation prescribed by section 18, title 2,, chapter 4, part 3, of the Revised Statutes (vol. 2 [3d ed.], page 394), was kept alive after the repeal of that section by section 91 of the old Code of Procedure, and is still preserved in section 382 of the Code now in force.

This limitation applies to “actions” for obtaining payment of a legacy or a distributive share, and applies also to proceedings instituted in this court by the legatee of a tester or the next of kin of an intestate for a like purpose, or for compelling an executor or administrator to account. See cases cited [supra).

By section 414, tit. 3, chap. 4 of the Code of Civil Procedure the rules of limitation prescribed by section 382 are-made applicable (save in certain cases not necessary to be here specified) to all civil actions and special proceedings. It does not matter when the cause of action may have arisen or accrued, whether after or before the enactment of chapter 4 of the Code, except only that where before such enactment the right to relief had already become extinguished, it is not revived.

Section 410 of chap. 4, when read in the light of the definition of the word “action,” employed in section 414, postpones the commencement of the time within which an action or special proceeding can be instituted, in cases, where a demand is necessary to entitle a person to maintain such action or proceeding, until the time when the right to make such demand is complete. It was provided by section 9, tit. 5, chap. 6, part 2 of the Revised Statutes, 3 Banks (6th ed), 1232 (and this provision continued in. force until the adoption of the second part of the Code of' Civil Procedure), that an action or proceeding to recover a. legacy or distributive share would not he until after reasonable demand for payment; and such demand could not be made until the expiration of a year from the granting of letters testamentary or letters of administration.

Whether we look therefore to section 410 ante or to section 9 ante, as applicable to the matter now under discussion, it is clear that, but for a Code provision not yet referred to, if the administrator of this decedent had been living on September 16, 1886, the date of the filing of this petition, and if on that day, which was more than one year plus six years after such administrator had obtained his letters, a proceeding had been brought against him similar in character to the present, he could have successfully interposed the shield of the statute of limitations.

His right to the protection of that statute if it accrued at. all did not accrue, however, until September 15, 1881. Now on September 1, 1880, section-1819 of the Code of Civil Procedure became law. That section declares that “if after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses upon demand to pay a legacyor distributive share, the person entitled thereto may maintain such an action against him as the case requires. But for the purpose of computing the time within which such an action must be commenced, the cause of action is deemed to accrue when the executor’s or administrator’s account is judicially settled, and not before.” This section is a substitute for section 9, title 5, chapter 6, part 2, Revised Statutes, to which I have before referred.

In view of the provisions of section 1819 and of the authorities above cited establishing the applicability to proceedings in this court of the rule of limitations applied in like cases in actions, I cannot doubt that as this decedent’s administrator never rendered any account of his trust, the petitioner could have maintained against him a proceeding like the present as well after as before September 15, 1881. This right subsisted at the time of the administrator’s death, and is now, under section 2606 of the Code, enforcible against his representative. This conclusion is supported by section 3352, whose provisions are, in substance, identical with those of subdivision 2, section 3, chapter 245, of the Laws of 1880. The effect of both those enactments is to exempt from the operation of section 1819 those cases, and those cases only, in which the right to interpose the statute of limitations had accrued before section 1819 became law. United States Life Insurance Co. v. Jordan, 5 Redf. 207; People v. French, 31 Hun, 617; Acker v. Acker, 81 N. Y,, 143; Butler v. Johnson, supra.

The respondent must account.  