Hill v. Board of Supervisors — 29 N.Y. St. Rep. 588

Majority

p. 588

Sarah Hill, App’lt, v. The Board of Supervisors of Rensselaer County, Resp’ts.^[1]

(Court of Appeals,

Filed February 25, 1890.

Headnote

Limitation—Destruction oe property by mob—Laws 1865, chap. 428— Code Crv. Pro. , £ 405.

By § 5 of chapter 428, Laws 1855. which relates to actions for damages to property by mob or riot, it is provided that such action cannot be maintained unless brought within three months from the loss or injury. An action was brought in the county court within the statutory period, but was dismissed as involving more than $1,000. After the three months had expired this action was brought. Held, that it could not be main- ■ tained ; that Code of Civil Procedure, § 405, did not apply, as by § 414 that does not apply to a case where a different limitation is specially prescribed by law.

Appeal from order of the supreme court, general term, third department, reversing judgment in favor of plaintiff entered upon the report of a referee.

James Lansing, for app’lt; B. A. Parmenter, for resp’ts.

This' was an action brought to recover compensation from the defendants for the'destruction of the plaintiff’s property in consequence of a mob or riot As the only authority for maintaining such an action is contained in a special law passed by the legislature in 1855, chap. 428, Laws 1855, and the objection was taken and is now insisted upon that it was not commenced within the time limited therefor by the act, it is unnecessary to consider other questions if that objection is sound. By the fifth section of the act it is provided that “no action shall be maintained under the provisions of this act, unless the same shall be brought within three months after the loss or injury.”

It seems that an action was begun within the statutory period in the county court for the same cause; but the complaint was dismissed for want of jurisdiction in that court to entertain actions brought to recover a sum exceeding $1,000. Thereafter the present action was begun, but not within the three months from the time the loss occurred; and the counsel for the plaintiff, appel

p. 589

lant here, seeks to overcome this apparent obstacle to the maintenance of his legal proceeding by reference to § 405 of the Code of Civil Procedure. That section provides that where an action is commenced within the time limited therefor, and it is terminated by a reversal of a judgment without awarding a new trial, or in any other manner than by voluntary discontinuance, dismissal for neglect to'proceed or a final judgment on the merits, the plaintiff m iy commence a new action for the same cause within one year after such reversal or termination. If that section is applicable, this cause of action might be saved, but I think it clear it cannot apply.

By reference to § 414 of the Code, the provisions of that chapter on limitations are made to “apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases: 1. A case where a different limitation is specially prescribed by law, etc.” It must be evident that as this action is brought under a special law and is maintainable solely by its authority, the limitation of time is so incorporated with the remedy given as to make it an integral part of it and the condition precedent to the maintenance of the action at all. Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally, and which the Code of Civil Procedure was enacted to regulate. But this special law of 1855 gave a civil remedy, which is independent of the Code remedies, and, in enacting § 414, the legislature, obviously, had in view to exempt these particular, or special, remedies by action, which they had the power to allow, and to leave themselves free to attach such conditions as to limitation of time as they saw fit. So, in the law of 1855 in question they made it a condition that the action must be brought within three months from the occurrence of the loss and plaintiff is bound by that limitation.

Eor the reasons expressed the order appealed from should be affirmed, and under the stipulation of the appellant judgment absolute should be awarded in favor of the defendant, with costs.

All concur.