Majority
p. 339Dilazon Tompkins, Resp’t, v. Robert H. Austin, App’lt. (Supreme Court, General Term, Second Department, Filed July 1, 1887.)
Headnote
1. Statute of limitations—Extension of time to commence an action — Code Civ. Pro., § 403.If a person entitled to maintain an action dies more than a year before the expiration of the time limited for the commencement of an action. Section 403 of Code Civ. Pro. does not extend the time within -which the action may he commenced by his representatives.
3. Same—Leave to issue execution.
The judgment creditor died within a year after obtaining the judgment and his will was duly probated. More than twenty years after the judgment was recovered, the executor under said will obtained an order granting her leave to issue execution on said judgment. II Id, error, that the time of limitation was not extended by Code civ Pro., § 403.
This is an appeal from an order made at special term, granting leave to issue execution on the judgment herein. The judgment was recovered on the 13th day of April, 1866. Bilazon Tompkins, the judgment creditor, died on the 18th day of February, 1867, leaving a last will and testament, wherein Jane Tompkins, his widow, was appointed executrix; the will was duly probated and letters testamentary therein were duly issued to the said Jane Tompkins, executrix, as aforesaid, who made application for leave to issue execution on said judgment, and the order granting such leave was made on the 39th day of January, 1887.
Close & Robertson, for resp’t; Willliam E. Slocum, for app’lt.
The respondent relies upon section 403 of the Code to support the order appealed from. We do not see the applicability of that section to this case. Had the decedent died immediately before the expiration of the time limited, an action might be brought after the expiration of that time within one year after the death.
The object of the statute seems to be to give the personal representative at least one year in which to act. The present case is not within the letter of the rule, nor within the reason.
The representative had the year in which to move before the expiration of the twenty years’ limitation. The time of limitation was not extended, and the order appealed from should be reversed.
■ Barnard, P. J., concurs; Bykman, J., not sitting.