Majority
Headnote
1. Statute of Limitations — Special Proceeding. Subdivisions 2 and 3 of section 382 of the Code of Civil Procedure, which impose the six years’ limitation upon “ an action to recover upon a liability created by statute,” and upon “an action to recover damages for an injury to property,” may be read as including a special proceeding as well as an action to recover upon a claim, as therein stated.We think the General Term erred in holding that the Statute of Limitations constituted any bar to this proceeding. It is objected to a recovery that the proceeding is one to recover upon a liability created by statute, and that it is also one to recover damages for an injury to property. The claim is made under subdivisions 2 and 3 of section 382 of the Code of Civil Procedure, by which the petitioner’s ■cause of action, if of the nature above described, would be barred after six years had elapsed from the time the proceeding might have been commenced. It will be seen that the 2nd and 3rd subdivisions of the above section 382 refer in terms to an action, but by section 414 it is provided that “ the provisions of this chapter apply and constitute the only rules ■of limitation applicable to a civil action or special proceeding, ■except in one of the following cases.” The exception does not apply to this case. And by section 415 the periods of limitation are to be computed from the time of the accruing -of the right to relief by action, special proceeding, defense ■or otherwise, to the time when the claim for relief is actually interposed by the party as a plaintiff or defendant in a particular action or special proceeding. Section 382 may be read, therefore, as to its subdivisions 2 and 3 as if it included a special proceeding as well as an action to recover upon a claim as therein stated.
We are of the opinion that this proceeding comes under neither subdivision of the section above quoted. It is in no sense a proceeding to recover upon a liability created by statute. The liability in this case is a liability to make compensation to the owner of lands and property taken by the water commissioners under the provisions of the statutes above quoted. The liability to pay for property taken is not created by either statute. It is a constitutional liability instead of a mere statutory one. The Constitution prohibits the tak
Eor is it a proceeding to recover damages for an injury to property, as provided for in subdivision 3 of this section. It is not a proceeding to recover damages for anything. The water commissioners have not injured the plaintiffs property and'he seeks to recover no damages for any injury to it' within the meaning of the limitation statute. What he seeks is compensation in the shape of payment for the value of the property appropriated and taken by the city of Amsterdam, through its authorized officials, and the resulting depreciation in value of the remaining property. It all comes under the head of liability to make compensation for property taken.* By statute they had a right to take such property upon payment being made, and when payment is made the title would pass, and although. the water commissioners had a right to initiate the proceedings themselves, yet not having done so the owner himself could, under the same statute, inaugurate them. They are proceedings in either instance to provide for compensation and obtain payment for property taken, not to recover damages simply for property injured. The section of. the statute under discussion does not, therefore, apply to this case.
The only other section which might be applicable is section 388, which provides that an action, the limitation of which is not specially prescribed in this or the last title, must be com
Again, the counsel for the respondents here contends the order of the General Term is not appealable to this court. If the General Term had affirmed the Special Term and the city of Amsterdam desired to review here the amount of the appraisal, the court could not hear the appeal. But the order of the General Term reversing and dismissing the whole proceeding and leaving the applicant without any award whatever, is appealable to this court, and we have never held to the contrary.
We have looked through the record,' and though possibly there may have been some evidence allowed which, upon a strict construction of the rules of evidence applicable to a jury trial at common law ought not to have been admitted, yet we are quite clear in the view that the admission of such evidence ought not to effect a reversal of the award. It may be too that the commissioners were quite liberal in their allowance to the petitioner, but with that we cannot interfere.
We think upon the whole that substantial justice was done in this case by the Special Term, and the order of the General Term should be reversed and that of the Special Term affirmed, with costs to the appellant in all courts.
All concur.
Ordered accordingly.
Cases cited
- Bucklin v. Ford 5 Barb. 393 p. 4
- Waterloo Woolen Manufacturing Co. v. Shanahan 128 N. Y. 345 p. 4
- Mark v. State 97 N. Y. 572 p. 4
- People v. Quigg 59 N. Y. 83 p. 4
- Reese v. Smyth 95 N. Y. 645 p. 4
- Cowenhoven v. Ball 118 N. Y. 231 p. 4
- In re Church 92 N. Y. 1 p. 4
- In re Mayor 17 Barb. 617 p. 5
- Andrews v. Durant 18 N. Y. 496 p. 5
- Hyde v. Stone 7 Wend. 354 p. 5
- In re the Trustees of the New York & Brooklyn Bridge to Acquire Lands of Clark 137 N. Y. 95 at 98 p. 5, p. 7
- Smith v. People 47 N. Y. 330 p. 5
- Embury v. Conner 3 N. Y. 511 p. 5
- Phyfe v. Eimer 45 N. Y. 102 p. 5
- In re Poughkeepsie Bridge Co. 108 N. Y. 483 p. 5
- Rogers v. Bradshaw 20 Johns. 735 p. 5
- Polly v. Saratoga & Washington Railroad 9 Barb. 449 p. 5
- Rexford v. Knight 11 N. Y. 308 p. 5
- Rider v. Stryker 63 N. Y. 136 p. 5
- In re the United States for the Appointment of Commissioners 96 N. Y. 227 p. 5, p. 6
- Donnelly v. City of Brooklyn 121 N. Y. 9 p. 6
- In re the Metropolitan Elevated Railway Co. 128 N. Y. 600 p. 6
- In re Southern Boulevard Railroad 141 N. Y. 532 p. 6
- In re the Southern Boulevard Railroad 143 N. Y. 253 p. 6
- In re Board of Street Opening & Improvement 133 N. Y. 436 p. 6
- Marvin v. Universal Life Insurance 85 N. Y. 278 at 284 p. 6
- Scott v. Pilkington 15 Abb. Pr. 280 p. 6
- Scott v. Morgan 94 N. Y. 508 at 515 p. 6
- People ex rel. Witherbee v. Board of Supervisors 70 N. Y. 228 p. 6
- Allard v. Greasert 61 N. Y. 1 at 4 p. 6
- Simar v. Canaday 53 N. Y. 298 p. 6
- Ward v. Craig 87 N. Y. 550 p. 6
- In re New York Central & Hudson River Railroad 70 N. Y. 191 p. 6
- In re Water Commissioners 96 N. Y. 351 p. 6
- Troy & Boston Railroad v. Lee 13 Barb. 169 p. 6
- Bohm v. Metropolitan Elevated Railway Co. 129 N. Y. 576 p. 6
- Folmsbee v. City of Amsterdam 142 N. Y. 118 p. 6
- Rochester Water-Works Co. v. Wood 41 How. Pr. 53 p. 7
- In re Village of Middletown 82 N. Y. 196 p. 7