It is conceded that all the questions in this case have been disposed of by previous decisions, (Boardman v. Lake Shore M.S. R'y Co., 84 N.Y. 157; Prouty v. Lake Shore M.S.R.R.Co., 85 id. 272), except the defense of the statute of limitations. The defendant company, which is a corporation in this State, and is sued here by a non-resident plaintiff, and which is the successor of the original debtor, whose corporate origin was under the laws of Michigan and Illinois, proved upon the trial the statutes of limitation of those States, and claimed that they constituted a bar to the recovery. That contention rests upon the construction and effect of section 390 of the Code of Civil Procedure, read in connection with section 414; for it is agreed on both sides that, before September, 1877, when the Code took effect, the statute of limitations of a foreign State constituted no defense to an action brought here. (Olcott v.Tioga R.R. Co., 20 N.Y. 210; Miller v. Brenham, 68 id. 83.) Section 390 has changed that rule to some extent, and the argument at once comes to the point, whether, under section 414, that change operates upon the cause of action in the case before us. The suit was brought in 1875, or about two years before the new Code took effect. Section 414 begins with a broad enactment that the provisions of chapter 4 "apply, and constitute the only rules of limitation applicable to a civil action, or special proceeding, except in the following cases." Then four exceptions are specified, the third of which only is material
to our inquiry, and is in substance, "a case * * * in which a person is entitled, when this act takes effect, to commence an action * * * where he commences * * * the same before the expiration of two years after this act takes effect;" in which case "the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof." The learned counsel for the appellant does not deny that the plaintiff comes within the description of a person entitled, when the Code took effect, to bring this action, although at that date it was already brought; but the result sought is deduced from the last clause of section 414 as giving character and construction to the language which precedes it. It is said that a "repeal" indicates a statute annulled, and not a judicial decision abrogated and reversed; and so the previously existing "provisions of law," spoken of as remaining applicable, must be those and those only which are embodied in former statutes of limitation repealed by the Code. It is doubtless true, that to speak of the "repeal" of a judicial doctrine is an awkward and unusual form of expression, and due probably to the fact that the framer of the section had mainly in his mind the repealed statutes of limitation; and yet the entire scope of the exception seems to us clearly intended to make applicable in the given case the previous "provisions of law" precisely as they stood before the Code, whether formulated in statutes, or resting in judicial decisions, and notwithstanding their repeal or abrogation by the new and substituted law. The purpose appears to have been to leave the plaintiff in the excepted case, precisely with the same rights and remedies he would have had if the Code of 1877 had never been enacted. The phrase "provisions of law" is a broad and general one. It cannot justly be confined to statutes, or legislative enactments. A rule or doctrine established by judicial decision is a "provision of law" equally with one enacted by the legislature. As such it is retained, and made operative in the excepted case. The use of the word "repealed" cannot narrow the phrase, "provisions of law" to such only as are statutory, in the face of an evident
legislative intent to leave the parties in the excepted cases exactly in the same situation as if the Code of 1877 had never been enacted. This conclusion leads to an affirmance of the judgment, without considering the other answers to the statute of limitations presented on the argument.
The order should be affirmed and judgment absolute rendered against defendant, with costs.
All concur.
Order affirmed.