10 Wend. 278 | N.Y. Sup. Ct. | 1833
By the Court,
The pleadings in this cause seem to have been framed in reference to the provisions of the revised statutes in relation to the statute of limitations, and the abatement of suits by the death of plaintiffs, 2 R. S. 296$ § 26; 299, § 35; 448, § 9 ; but these provisions can have no influence on this case, and we must decide the questions arising upon the pleadings according to the law as it existed previous to those statutes going into effect. 2 R. S. 300, §45.
Previous to the enactment above referred to, 2 R. S. 299, § 35, there was no statute in this state giving to the executor or administrator any period of time beyond that allowed to the testator or intestate, within which to bring a new action after an abatement by the death of such testator or intestate. The revised laws, 1 R. L. 186, § 5, after limiting certain actions to be brought within given periods, contain a provision that if in
There is considerable force in the argument used to maintain the form and substance of the second and third pleas; and upon general principles, they would seem to be unobjectionable. They are drawn upon the idea, that it is essential, not only to plead in bar the general limitation of these actions, but to include therein the year given to the plaintiff under the equitable construction of the proviso, after the death of the intestate, and which is now expressly given by the 2 R. S. 299, § 35; or in other words, as the general act limits the action to six years, and one year is given to the executor or administrator in addition, it is necessary to plead actio non accrevit within the whole period before commencement of suit,
The plaintiff is entitled to judgment on his demurrer to the second and third pleas, and the defendant to judgment on his demurrer to the plaintiff’s replication; and leave is granted to the respective parties to amend their pleadings.