19 N.Y.S. 522 | N.Y. Sup. Ct. | 1892
Plaintiff’s cause of action accrued when the money was paid'
for her to her husband, March 81, 1882; and, unless the running of the statute was arrested by the delivery of the summons to the sheriff, the statute had run against the claim before the death of Gen. Biley. Mills v. Mills, 115 N. Y. 80, 21 N. E. Rep. 714. The delivery of the summons to the sheriff was equivalent to the commencement of an action within the provisions of the Code limiting the time for the commencing of actions, and would have arrested the running of the statute had the conditions of section 399 of the Code of Civil Procedure been complied with by the personal service of the summons upon the defendant sought to be charged, or by the first publication of the summons pursuant to an order for service upon him in that manner within 60 days after the expiration of the time limited for the actual commencement of the action. The death of Gen. Riley made a literal compliance with these conditions impossible, and it is the contention of the plaintiff that, because of such impossibility, the delivery of the summons arrested the running of the statute, and that the plaintiff should be excused from a compliance with the conditions. It is held in Estes v. Wilcox, 67 N. Y. 264; Adsit v. Butler, 87 N. Y. 585; Bank v. Wetmore, 124 N. Y. 248, 26 N. E. Rep. 548,—that a compliance with all the provisions of section 399 is indispensable in order to prevent the statute from running against the claim. The plaintiff evidently took this view of the situation, as is evidenced by her attempt to revive the action against these defendants as executors. When defeated in her motion, she abandoned that proceeding, and afterwards brought a new action directly against the defendant’s executors. When Gen. Biley died, the summons was in the hands of the sheriff for service; it had an actual potential existence. Gen. Riley was the sole defendant named. Section 757 of the Code provides that, in case of the death of a sole defendant, where the cause of action survives, the court must, upon a motion, allow the action to be continued against his representative or successor in interest. Whether it can be held that Gen. Biley was a defendant, within the meaning of this section before the service of the summons upon him may be doubted; but it must be held, we think, that the only means of relief the plaintiff had, if she had any, lay in the continuance of the proceeding to revive the action. The action in which the attempted service was made must in some manner have been continued to avail the plaintiff anything in arresting the running of the statute. Section 399 expressly provides that, in order to entitle a