108 N.Y.S. 852 | N.Y. App. Div. | 1908
Lead Opinion
This action was commenced on the 21st day of February, 1899. The operation of the road opposite the premises 'in question was begun on the 3'0th day of December, 1878. Plaintiff acquired title on June 8,1891, by a referee’s deed in an action in partition entitled “ Joseph Dang against Caroline Andre and others.” In April, 1868, John Lang acquired title to the premises in suit, and died January
When the caiise of action accrued on December 30, 1878, title was in the widow as life "tenant, and the children as remaindermen.
The causé of action accrued on December 30,1878, and the action having "been commenced on the 21st day of February, 1899, more than twenty years had elapsed. Hindley v. Manhattan R. Co. (185 N. Y. 335) held that where it"' appears that the railroad companies acting under legislative and municipal grants giving them actual authority to erect, maintain and operate an elevated railroad in the street upon which the plaintiff- was an abutting owner,, and apparent authority to appropriate the easements of abutting owners to the extent that such a structure and the use thereof necessarily involve, entered such a street and, without leave or license from the plaintiff, took open, hostile and absolute possession of his easements of light, air and access by building a huge and permanent structure of" iron in the street ■ in front of his premises, which has been exclusively and continuously maintained and used by the companies for the purposes of an elevated railroad for a period" of more than twenty years, the companies have acquired by prescription an absolute title to such easements which constitutes a complete bar to the recovery and relief demanded by the plaintiff.
■ In Scallon v. Manhattan Railway Go. (185 27. Y. 359.) it was held that adverse possession- and prescription, being closely related, the former-regulated by statute-and the latter by common law, the effect of infancy upon title by prescription is analogous to that
On the 30th of December, 1878, the five surviving children of John Lang were infants, and were vested with the remainder in fee of this property under'the will of their father, subject to the estate of their mother for life or while unmarried. At that timé a cause of action sprang into being to the children for. the injury done to ■ their remainder in fee. “ A person seised of an estate in remainder or reversion may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years.” (1 B. S. 750, § 8.) “A person seized of an estate in remainder or reversion may maintain an action founded upon an injury doné to the inheritance, notwithstanding any intervening estate,for life or for years:” (Code Civ. Proc. § 1665.) So that notwithstanding the intervening life estate- of' their mother, and in no way dependent thereon, an action could have been brought and maintained by the children (Thompson v. M. R. Co., 130 N. Y. 360); and such an action could have been brought during their infancy by a guardian ad litem. (Walsh v. Brooklyn Union El. R. R. Co., No. 2, 69 App. Div. 389.)
As entry did not take pláce during the life of their ancestor, that is, their father, from whom they took title by will, the adverse possession did not begin to run during his lifetime. The oldest of the children, Fredericka, having been born August 20, 1860, was a little over eighteen' years of age when the cause of action accrued. Section 375 of the Code of Civil Procedure provides, that: “ If a person who might maintain an action to recover real property, er the possession thereof, or make an entry, or interpose a defence or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when liis title first'descends, or his cause of action or right of entry first accrues * . * * within the age
The ajipellants claim that the correct method of computing the period of limitation is to allow a full twenty years from the accruing of the cause of action, then to note the date when the “ time so limited” would expire, if no "disability was involved. If this expiration of the-limitation falls at a date more than ten years after the attainment of majority of the infant, he is entitled to no extension. If it falls at a date less than ten years after his majority, he has up to the end of that ten years’ extension of time in which to commence action. Applying that interpretation of the statute to the facts of this case, they add the twenty years to the date of the accruing of the. cause of action, December 30, 1878, and thereby make the period of limitation December 30, 1898, if there was nothing to extend -it. As on that date Fredericka was over thirty-eight years of age, she having become of age on August 20, 1881, she had been allowed twenty years, and over ten years had elapsed after her disability had ceased in which to commence the action. And so they claim the Statute of Limitations had fully run.
This method of computation is not that adopted.by the Court of Appeals. As I understand the rule laid down by that court, it is to take the date of the coming of age of the infant as the starting point; to that date add twenty years, and from that ascertained date look back to the date when the cause of action accrued, and if said-date was within the period of disability and not more than ten years prior to the infant’s coming of age and the suit is brought within twenty years after its coming of age the statute has not run.
In Howell v. Leavitt (95 N. Y. 617) Judge Finch said: “It is further contended that the Statute of Limitations barred the right .of Louise M. Howell. The facts were that she became of age December 31, 1864; that Roberts got possession claiming title as owner March 15, 1858; and the action was begun 'November 7, 1878. The appellants’ construction of the Code (§ 88,
In Darrow v. Calkins (154 N. Y. 503), Harrow died on November 13, 1864, leaving two infant children. The adverse possession commenced October 18, 1867. The infants were then nine and eleven years of age respectively. One became of age in 1877 and one in 1879. Talcing the eldest child and adding twenty years from the time it became of age would bring the date 1897. The adverse possession was in 1867, thirty years prior thereto. The action was commenced in 1894, twenty-seven years after the cause of action accrued and when the infant had reached the age of thirty-eight, and seventeen years after he became of age. The court said: “The plaintiffs at the death of Harrow were infants and although this action was not commenced until thirty years after his death nor until fifteen years after the younger of the plaintiffs became of age, it seems under the case of Howell v. Leavitt (95 N. Y. 617) the plaintiffs although they have slumbered upon their rights during an adverse possession of twenty-seven years, were not barred by the Statute of Limitations.”
In Brown v. Doherty (185 N. Y. 383) the facts were that the child became of age on Becember 21, 1889. Adding twenty years would make 1909. The' adverse possession began on August 5, 1878. The action was commenced on March 9, 1902, that is, over twenty-three years after the cause of action accrued, and when the child had reached the age of thirty-two and a half. Judge G-raA said: “It becomes unnecessary to discuss the question of whether title has been gained by the plaintiff through an adverse possession during the twenty-three years of her occupatiqn. Upon the authority of Howell v. Leavitt (95 N. Y. 617), it . would hardly appear that the facts of this case bring the defendants, who were infants at the time of the sale, within the provisions of section 375iof the Code of Civil Procedure.”
Applying those cases to that at bar, we find that Fredericka became of age on August 20,1881. Twenty years thereafter would accrue on August 20,1901. The cause of action accrued Becember
It seems clear that, although it is now the settled law of this State that title by prescription by the elevated railroads niaybe obtained by adverse possession for twenty years, and that when that period has been set running in the lifetime .of the ancestor.it is not suspended during the infancy of his heirs or devisees, yet that in this case at the time the cause of action accrued, the .remaindermen being infants, the exceptions set forth in section 375. of the Code of Civil Procedure apply, so that when this action was instituted title by prescription against said infants had not vested in the defendants. - The plaintiff having purchased at a partition sále these infants’ property -took it with the rights of such owners.1 (Pappenheim v. Metropolitan El. R. Co. (128 N. Y. 436).
Ho-question is made upon this appeal of the amounts of the award. The judgment should, therefore, be affirmed) with costs to the respondent.
Pattbbson, P. J„ Ingbaham and Houghton, JJ., concurred Laughlin, J., concurred in result.
Code Proc. § 88.— [Rep.
Concurrence Opinion
I agree'with Mr. Justice Clabke that the judgment, is sustained by Howell v. Leavitt (95 N. Y. 617) and the decisions following it; but I am not prepared to approve, the test which- he applies to a given state of facts to determine whether under the construction placed by that'decision on the provisions of section 375 of the Code of. Civil Procedure, the Statute of Limitations has run) and wére the question open 1 would hold that the recovery is right as- to twofiftlis and erroneous as to three-fifths. The plaintiff acquired title to the premises by a referee’s deed in partition on the' 8th day of June, 1891, prior to which time the title was vested in five children of one, John Lang, Who died on the 30th day of January, 1875,
■ The. confusion has, I think, arisen over regarding the Statute of Limitations as wholly suspended during the infancy. That is not what the Legislature has prescribed. By this construction no force , or effect is given to the significant word “ except ” and the words following it which qualify the phrase that the time of the disability is not a part of the. time prescribed in the Statute of Limitations. It is quite evident, I think, that this section should be construed as if it read, as follows: “ The time of such a disability,” namely, the period of infancy after the cause of action has accrued, .“ is not a part of the time, lirilited in this title,” namely, the twenty years for commencing the action, “ except that the time so limited,” namely, - the twenty years, “ cannot be extended more than ten years after the disability ceases.” There is nothing here which would necessitate an abridgement of the full period of twenty years in any case. The Legislature dealt only with the twenty-year period and an extension not an abridgement thereof. The intention was that .the twenty years should be so extended when nece'ssary to give the infant in all cases ten years after arriving at the age of twenty-one.The effect of the clause inserting the exception is that the period of disability is not a part of the twenty years excepting in .those cases where, by excluding the period of infancy, the twenty years would be extended to a date more than ten years subsequent to the infant’s attaining his majority,- and in such case the- period -of infancy shall be considered to the extent-of limiting the time to ten years after the infant becomes of age. The statute in effect pro^ •vides tliat the period of infancy shall not be computed excepting
Judgment affirmed, with costs.