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CHRISTOPHERS v. GARR

Court of Appeals of the State of New York
Dec 1, 1851
6 N.Y. 61 (N.Y. 1851)

Opinion

December Term, 1851

Andrew S. Garr, appellant in person.

Charles W. Sandford, for respondent.


This is an appeal from the judgment of the court of common pleas of the city and county of New-York, upon a case agreed upon between the parties on the second day of March, 1850, containing the facts upon which the controversy depends, pursuant to §§ 372, 373, 374, of the Code of Procedure.

The facts are, that Colin Mitchell, the intestate, on the 2d day of April, 1836, made his promissory note payable to the order of T. Vermilya, for $929,56, ten months after date; of which Christophers is the indorsee and owner. On the 7th or 8th day of February, 1837, Mitchell left New-York, for Florida, where he remained until the last of July, or the first of August, 1837, when he sailed from Apalachicola in a vessel bound for New-York, after which the vessel was never heard of, nor Mitchell, and it is supposed that he perished at sea in the said month of August. Letters of administration upon his estate were issued by the surrogate of New-York to Garr, on the 27th day of June, 1844. On the 8th day of April, 1837, Mitchell wrote and transmitted by mail to Vermilya a letter, in which he alluded to a note of his to Vermilya, due the second day of that month, expressing some concern on account of his inability to pay it.

The single question submitted by the parties for the determination of the court below was, whether the plaintiff's cause of action upon the note in question, was or not barred by the statute of limitations. That court held that it was not.

The note became payable, including the days of grace, on the fifth day of February, 1837, and Mitchell being then a resident of New-York, the statute began to run.

This is one of the actions which the statute (2 R.S. 295, § 18,) provides, as a general rule, shall be commenced within six years next after the cause of such action accrued, and not after. To this rule there are several exceptions made by §§ 24, 25, 26, 27 and 28, of the same statute. The last clause of § 27 provides, that, if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.

As Mitchell was within the state at and after the time when the action accrued on the note, the running of the statute against the action commenced, at that time; his departure from the state and his residence out of it, operated as a suspension during his absence; but that terminated with his death. When the statute begins to run, it is a general rule that no subsequent disability stops it; the death of the party is not an exception. ( Wenman v. Mohawk Ins. Co., 13 Wend. 267, and the cases there cited.)

At the death of Mitchell, the statute had not yet run, and therefore, 2 R.S. 448, § 8, applies, to extend the statute eighteen months after his death, in addition to such part of the six years as remained unexpired at that time; which carried the period of limitation to February, in the year 1845. The action not being brought until March, 1850, it came too late by more than five years. It might have been brought immediately after letters of administration were granted in June, 1844. If the delay works a loss to the plaintiff, it is chargeable to his own neglect, in not taking care to commence his suit in time to have avoided it.

The case of Benjamin v. DeGroot, (1 Denio, 151,) is supposed by the plaintiff's counsel to be an authority to sustain this suit; but it may be seen that that case presents a distinction which is not to be found in this, namely, that there the statute had not begun to run against the debtor during his lifetime.

I am of opinion that the action was barred by the statute at the time it was commenced, and that the judgment of the court below is consequently erroneous and should be reversed.


This case turns on the true construction of the last clause of the 27th section of our revised statutes "of the "time of commencing actions." (2 R.S. 297.)

When the action accrued the debtor was within this state; and of course, the statute began to run. The appellant afterwards took out letters of administration on his estate. If the whole time, from the departure of the debtor from the state until the letters were taken out, is deducted, the suit is commenced in season; but if only the time from his departure to his death is deducted, the suit is not in season.

The first clause of this section of the statute has received a judicial interpretation in the case of Benjamin v. DeGroot, (1 Denio, 155.) That clause expressly provides, that if the debtor is out of the state when the cause of action accrues "such "action may be commenced within the times herein respectively "limited, after the return of such person into the state." Hence if he does not return into the state, and dies abroad, the statute cannot commence running until after representatives of his estate have been appointed; and so the court held in the case cited. But the provision of the statute, contained in the second clause, and which provides for the case of a debtor being within the state when the action accrues, is very different. In that case the statutory direction is, if "such person shall depart " from, and reside out of this state, the time of his absence "shall not be deemed or taken as any part of the time limited "for the commencement of such action." It appears to me that the true meaning of this provision is, that the time to be deducted is only that which accrues while the party resides out of the state. During that time no process can be served upon him. As soon as his death occurs, whether out of or in the state, measures may be taken to settle his estate and collect debts against it.

If the statute had begun to run and the debtor had died in the state, it would continue to run; and the creditor would have the benefit of only the eighteen months given him by the statute. (2 R.S. 448, § 8.)

Again, this section 8 applies to this case. Its language is: "The term of eighteen months after the death of any testator "or intestate shall not be deemed any part of the time limited "by law for the commencement of actions against his executors "or administrators," c. No reference is had to the place of death. Whenever the debtor dies, these eighteen months are given to set forward proceedings to collect his demand. On the whole, my opinion is, that the statute is a bar to the present suit.

Judgment reversed.


Summaries of

CHRISTOPHERS v. GARR

Court of Appeals of the State of New York
Dec 1, 1851
6 N.Y. 61 (N.Y. 1851)
Case details for

CHRISTOPHERS v. GARR

Case Details

Full title:CHRISTOPHERS against GARR, administrator, c

Court:Court of Appeals of the State of New York

Date published: Dec 1, 1851

Citations

6 N.Y. 61 (N.Y. 1851)