Hall v. Brennan — 55 N.Y. St. Rep. 792

Majority

p. 792

Frances D. Hall et al., Trustees, Resp’ts, v. Fanny Brennan et al., Ex’rs, App’lts.^[1]

(Court of Appeals,

Filed December 19, 1893.)

Headnote

Limitation—Death op debtoe.

The maker of a note dated September 17, 1880, payable in one year,

p. 793

died. August 12, 1887, but letters testamentary were not issued until March 23, 1889. Action was brought on the note on March 21, 1890, Held, that the action was not barred by the statute of limitations ; that the period of eighteen months from the death of the maker not being a part of the time within which to commence the action, at the expiration thereof whatever remained of the time limited at the maker’s death should be added, and letters of administration having been issued within six months before the date so ascertained, the creditors had one year from the granting of the letters in- which to commence the action.

Appeal from judgment of the supreme court, general term third department, affirming judgment in favor of plaintiffs.

The promissory note sued upon was made by defendants’ testator of the date of September 17, 1880, and became due by its terms on September 20, 1881. The limitation of six years for the commencement of an action would have expired September 21, 1887. The maker died August 12, 1887. Letters testamentary were issued March 23,1889. This action was commenced March 21, 1890. The defense that it was barred by the statute of limitations was overruled at the circuit, and the judgment entered for the plaintiffs was affirmed at the general term. The defendants have appealed from the judgment of affirmance to this court.

J. W. Houghton, for app’lts; Matthew Hale, for resp’ts.

We think the judgments below were right It is perfectly clear- that the action was commenced within the time limited by the statute, as a brief consideration of its provisions and of the facts will show. At the time of the death of the maker of this note, the six years had not run out by forty days. The event of his death operated, under § 403 of the Code of Civil Procedure, to suspend the running of the statute of limitations upon the liability. That section explicitly provides that the term of eighteen months is not part of the time limited for the commencement of an action against the executor or administrator. The eighteen months mentioned, being computed as calendar months, expired on February 13, 1889, under the familiar rule that in the computation of time, the day of the date of the event from which time runs is excluded. When the suspension, caused by the intervention of the statutory provisions referred to, was at an end, on February 13, the running of the sixth year was resumed. Of that year there had remained just forty days, when testator died, and if we compute that period of time from February 13, 1889, we are brought down to March 25, 1889. But bn March 23, letters testamentary had been issued upon testator’s estate, and, under § 403 of the Code, the plaintiffs had one year thereafter to commence their action. That section provides that if letters are not issued at least six months before the expiration of the time to bring the action, as extended by the eighteen months, the term of one year after their issuance is not a part of the statutory limitation of time. As the limitation of time expired, as I have shown, on March 23, the failure to issue letters six months before that date operated to give the plaintiffs one year more from their actual issuance, within which to commence their action. This they did.

p. 794

According to the appellants’ contention, we should not add the number of days which remained at testator’s death in August, 1887, to complete the full sixth year; upon the theory that what the statute contemplated was simply to add eighteen months to the six years and, thus, to limit the computation to the whole time, within which an action must be commenced, to seven years and six months from the day when the note might have been sued upon. „ Upon this theory the seven years and six months would have expired on March 21, 1889, or two days before the issuance of letters testamentary. The difference, as it is easily seen, arises from the number of days being less in the month of February than in the month of August. The basis of the contention of the appellants is that § 403 is to be construed as requiring letters to issue before the expiration of the time to bring the action, in order that the creditor may have the benefit of the extension of one year thereafter, and, hence, thq additional year mentioned in the section should not be allowed here. It is' linnecessary to consider how correct is the construction thus attempted' to be given to the section; it suffices to say that the language of the provision in the section, respecting the term of eighteen months after the death of the person, is so clear as to be susceptible of but one meaning. If the eighteen months are not a part of the time limited for the commencement of an action, as it reads, then, when the death occurs, the operation of the statute of limitations is immediately suspended or cut off, and whatever then remained of the time limited necessarily must still remain when the suspension ceases.

Whatever interpretation we might give to the “ Construction Act ” of 1892, which appellants cite, and which defines the meaning of the term year to be twelve months, when used in statute -or contract, the provision of the Revised Statutes, in force at the time, was that the term year should be taken to consist of 365 days. 1 R. S„ 606, § 3. Upon that statutory provisión the plaintiffs had the right to rely, and, admitting that by the repeal of that provision of the statute a different computation plight become necessary, the legislative act could not operate to affect a valuable right which, by force of the statutes in existence, had become vested in a person. It was, therefore, within these plaintiffs’ rights to compute the time remaining of the six years, after the expiration of the eighteen months of suspension, by the number of days which were left of the sixth year when interrupted by the death of the maker of the note.

For the reasons stated, the judgment should be affirmed, with costs.

All concur.