115 N.Y.S. 289 | N.Y. App. Div. | 1909
This is an action brought by a creditor of Andrew Moore,'deceased,' against his heirs under section 1843 of the Code of Civil'Procedure' to enforce an indebtedness of the decedent'owing to plaintiff against real property which descended from, the decedent- to these defendants as such heirs. The defense is the Statute of Limitations - -The'indebtedness is represented by a promissory note -executed by said Andrew Moore to the plaintiff March-1,1888,' and payable-one year after the date thereof. It is claimed that ,a payment, was made thereon October 21, 1898. Andrew Moore died May 31, 1899.. Letters, of - administration on his estate were issued July .10, 1899. This action was instituted January 17, 1908, Or about -nine , years and three months after the alleged payment on the note.
Section 1844 of the Code of Civil Procedure prohibited the institution of this action until three years had elapsed after, letters of administration on the estate of the decedent were granted. . It has been'held that this was á statutory prohibition against the . commencement of the action within the meaning-of section 4Ó6 of the Code of Civil Procedure, providing, “ where the commencement of an- action'lias been stayed by injunction or other order of a court;or judge or by statutory prohibition the time of the continuance of -the stay is not a part of the. time limited for the commencement of the action.” (Mead v. Jenkins, 27 Hun, 570; Adams v. Fassett, 149 N. Y. 61.) The six-years’ -Statute of Limitations tiú the hoto,therefore, was extended as against these defendants in an action, of this kind by the time which, intervened between fhé.death, of the..dece.-r dent and three years after letters of administration on; his-.estate were issued. This latter extension was .thréé years oné-móntli and
Plaintiff’s only answer to this difficulty is that section 1843 of the Code of Civil Procedure creates a new liability on which his action is based, and that the period of nine years for the commencement of the action dates from the death of the decedent rather than from the payment on the note. It appears to have beeil thought otherwise in the cases above cited. Section 1843 does not create an absolute liability against the heirs, but merely provides a method for enforcing an existing liability of the decedent against his assets which have come into the hands of his heirs. The same result might have been accomplished by proceeding in Surrogate’s Court under section 2750 of the Code of Civil Procedure to sell the decedent’s real estate for the payment of his debts. Plaintiff, for three years after letters of administration were issued, had an enforcible remedy against this real property by such a proceeding to reach the same in Surrogate’s Court, and immediately after the expiration of such remedy the present remedy became available to him. There have, therefore, been nine years since the payment on the note, during all of which time some action or proceeding could have been taken for the enforcement of this indebtedness.
The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellants to abide event.
