
    Sidney Wilder, App’lt, v. Henry C. Ballou, Ex’r. of Theodore P. Ballou, Deceased, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 13, 1892.)
    
    1. Decedent’s estates—Limitation.
    Section 406 of the Code is applicable in a case where the limitation provided for by § 1822 is pleaded as a defense.
    
      8. Same.
    After the rejection by the executor of a claim presented by plaintiff, the latter moved to have an action previously brought upon said claim continued against the executor; which motion was granted on condition that plaintiff stipulate not to claim treble damages and to stay all proceedings on the claim presented to the executor, which stipulation was given. The order entered thereon, in terms, granted the motion and directed the filing of the stipulation in ten days. Held, that such order operated as a stay, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action upon the claim so presented and rejected.
    Appeal from a judgment, entered in Oneida county, October '9, 1891, dismissing the plaintiff’s complaint, with costs. In December, 1885, the plaintiff commenced an action against the defendant’s testator and one James N. Walters for the same cause of action set out in the complaint herein. Issue was joined therein by the service of answers by both defendants. Before it was brought to trial, and on February 28, 1887, the defendant’s testator died, leaving a last will and testament by which the defendant was appointed as his executor. This will was subsequently admitted to probate, and letters testamentary were duly issued to him, and he qualified as such executor.
    After having so qualified and entered upon the duties of his 'office, he caused a notice to the creditors of the decedent to be published in a newspaper printed in the county where the testator resided at the time of his death, requiring such creditors to present their claims to him at his office on or before the 15th of September, 1888. This notice was published from March 12th until September 15th of that year.
    During the publication of such notice, and on June 30th and July 2, 1888, the plaintiff presented to the defendant his claim, which was the same as the cause of action set forth in the complaint. On the 25th of the latter month, the defendant served upon the plaintiff a notice in writing that he doubted the justice and validity of such claim, and therefore disputed it. The claim presented was not referred.
    On December 3, 1888, the plaintiff moved in the action against the defendant’s testator and Walters for an order reviving that action as against the decedent’s estate and to make the defendant a party thereto. This motion was opposed by the defendant on the grounds that after the death of his testator and after letters testamentary were issued to him, the plaintiff had proceeded therein against Walters, the surviving defendant, thus working a practical severance thereof. And also on the further ground that the claim presented by the plaintiff to the defendant had not been withdrawn, and defendant claimed that any motion granted to revive and continue such action should be conditional upon the withdrawal and abandonment of his claim as presented against the estate of defendant’s testator.
    The court decided that it would grant plaintiff’s motion, provided he would within ten days stipulate to waive his right to apply for treble damages in case of a verdict in his favor, and also-stipulate within that time to stay all proceedings upon his claim. presented to the executor, to be binding as long as the order stood. In pursuance of that decision, an order was entered as-follows:
    ‘ Upon reading and filing affidavits of the above named plaintiff, verified November 23, 1888, and notice of motion to continue and revive the action as to the' estate of defendant Theodore P. Ballou, and bring in his executor, and upon reading and filing affidavit of Henry 0. Ballou, verified November 26th, and. E. J. Richardson, verified November 27, 1888, after hearing A„ B. Steele, of counsel for plaintiff, for said motion, and E. J.. Richardson, of counsel for defendants and said executor, opposed. Ordered, that this motion be, and the same is hereby granted, the-said plaintiff as a condition of the granting of said motion, file a. stipulation to waive his right to apply for treble damages in case-of a verdict in his favor, and also stipulate to stay all proceedings-upon his claim presented to the executor, such stipulation to be filed within ten days and to be binding as long as this order-stands. ”
    On December 13, 1888, the plaintiff filed a stipulation in compliance with such order, waiving the right of plaintiff to apply for treble damages and stipulating that all proceedings be stayed upon the claim of plaintiff presented to the defendant, to be binding as-long as the order reviving the action and bringing in the executor stood.
    After such stipulation was filed, the defendant appealed from the foregoing order. Upon the appeal, the order of the special term was reversed. The order of reversal was entered February 27, 1889, and copies thereof served upon the plaintiff’s attorneys-upon that day.
    This action was commenced by the personal service of the summons and complaint herein upon the defendant as such executor-on the 28th day of March, 1889, and not prior to that time.
    From the time of the rejection of- the plaintiff’s claim to the-time of granting the order to revive the former action was four-months and sixteen days, and from the date of the entry of the order of the general term, reversing the order of the special term to revive and continue said action .to the commencement of this action, was one month and one day. This action was not commenced within six months after the plaintiff’s claim was rejected by the defendant, but excluding the time during which the order-reviving said action remained unreversed, the remaining time-between the rejection of such claim and the commencement of this action, was only five months and seventeen days.
    
      Steele & Prescott, for app’lt; K Jl Richardson and A. M. Mills,, for resp’t.
   Martin, J.

The only question that need be considered on this appeal is whether the plaintiff’s right to maintain this action was-barred by the six months limitation provided for by § 1822 of the Code of Civil Procedure.

' That the claim which was the foundation of this action was presented to the defendant as executor, and by him disputed andi rejected more than six months before the commencement of this action, was amply proved and undisputed.

The appellant, however, seeks to avoid the effect of the limitation provided for by § 1822, on the theory that § 406, which declares that “ Where the commencement of an action has been stayed by injunction, or by other order of a court or judge, or 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,” was applicable to this case, and that he was stayed by the order of the' special term during the time the order reviving and continuing that action was in force.

The first question presented is whether the provisions of § 406 are applicable to the limitation provided for by § 1822. It is contended by the respondent that the general provisions contained in chapter 4 of the Code of Civil Procedure are not applicable to the special limitation provided for by § 1822. That question can hardly be regarded as an open one in this court. In Titus v. Poole (38 St. Rep., 627) we held that § 405 was applicable in a case where the limitation provided for by § 1822 was pleaded as a defense. If that decision was correct, it would seem to follow that § 406 is applicable to the case at bar, and that the time, if any, during which the commencement of this action was stayed by an order of the court was not a part of the time limited for the commencement of the action.

The contention of the respondent is that the decision and order made by the court did not absolutely require the plaintiff to give a stipulation for á stay of proceedings on his claim, and that there was no absolute order either continuing such action after such stipulation was given, or in any way staying the commencement of an action. He also contends that the only order granted was a provisional one, and that whether there was to be any stay was wholly dependent upon the consent of the plaintiff; that if there was any stay of proceedings, it was by virtue of the stipulation of the plaintiff, and not otherwise.

On the other hand, the appellant claims that such decision and order constituted a stay of proceedings by an order of court, and was within the provisions of § 406 of the Code; that, although the decision was conditional, yet, when the plaintiff accepted its terms, and entered an order whereby the motion was granted, and • he was directed to give a stipulation staying proceedings on his claim, the stay was in pursuance of an order of the court, and, therefore, within the spirit, if not within the letter, of that section. There seems to be much force in this claim.

The decision made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings, but the order which was entered by the plaintiff in pursuance of that decision was an order actually reviving and continuing the action against the defendant, and it in effect required the plaintiff to give a stipulation staying proceedings on his claim while that order was in existence. This we regard as a fair construction of the provisions of the order. The order, and not the memorandum of the judge, must control While the order did not in terms stay the commencement of an action by the plaintiff upon his claim, it required him to stipulate to stay proceedings thereon while it stood, which was tantamount to and in effect an order for such a stay. This question may not perhaps be entirely free from doubt, but when we consider this order in the light of the circumstances under which and the purpose for which it was granted, we are led to the conclusion that it in effect stayed the commencement of an action by the plaintiff upon his claim, and was within the spirit of § 406.

We are, therefore, of the opinion that the plaintiff was stayed by an order of the court from the commencement of an action upon his claim during the continuance of such order, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action. Hence it follows that the judgment appealed from should be reversed.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Merwin, J., concurs; Hardin, P. J., not voting.  