30 How. Pr. 246 | N.Y. Sup. Ct. | 1865
The special verdict contains the following facts: J. E. Scovil made his promissory note April 22,1857, by'which, on demand, he promised to pay William E. Scovil $2500j with annfial interest. J. E. Scovil died January 22, 1862, intestate, and letters of administration upon his estate were issued to the defendants June 2, 1862, and this suit was commenced April 25, 1864, more than a year after issuing letters of administration, but within six years after the note became due, if we exclude eighteen months in the computation of time. The defense is the statute of limitations. By chapter 8, part 3 of the Revised Statutes, entitled “ Of proceedings in special cases,” title 3, article 1, section 8, (2 R. S. 448,) it is provided as follows; “ The term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by any law for the commencement of actions against his executors or administrators.” By the Code of Procedure, section 471, title 1 of chapter 8
It will be observed that the latter part of-section 102 of •the Code wag not included in the provisions of chapter 4, article 4, part 3 of the Revised Statutes, (2 R. S. 298,) which were repealed by section 73 of the Code. It is a new provision, and may operate to extend the time for .commencing áctións against administrators in many cases where the debtor dies before the expiration of the time limited for the commencement thereof, and the cause of action survives. But is it plainly inconsistent with section 8 of the Revised Statutes which excludes from the computation of time the eighteen months succeeding the death of the intestate ? By a familiar rule in the construction of statutes, if both provisions can stand together, they must stand, (Dwarris, 673 to 675.)
I confess I am unable to see any necessary conflict between these two provisions of law, unless we construe section 102 of the Code as undertaking to limit as well as to extend the time for commencing actions against administrators, in cer
I think the plaintiff is entitled to judgment, upon the special verdict.
By section 8 of article 1, title 3, chapter 6, third part of the Revised Statutes, it is provided that the term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators. By the 9th section it is provided that the time which shall have elapsed between the death of any person and the granting of letters of administration on his estate, not exceeding six months, and the period of six months after granting of such letters, shall not be deemed any part of the time limited by any law for the commencement of actions by executors or administrators. Section 102 of the Code provides, that if any person entitled to bring an action shall die before the expiration of the time limited for the commencement thereof, and the cause of action survives,' it may be commenced by his1 representative within one year after his death. If the person against whom an action may be brought die before the expiration of the time limited, and the cause
It would be folly to allow eighteen months to the administrators to collect, and yet compel the creditors to sue, if their claims were not allowed within a less time. The con- • sequence is that the party suing has eighteen months after the death, during .which the running of the statute is suspended ; and if personal representatives are appointed, he has, in addition, one year from the time of their appointment. (Dayton’s Surrogate, 346.)
This action was commenced within the time limited, and the judgment should therefore be affirmed.
Without definitely passing upon the question which has been mainly argued here by the defendants’ counsel, to wit, that the limitation of one year after the granting of letters of administration in which to bring an action, as prescribed by section 102 of the Code, has repealed the eighteen months provision of the Revised Statutes, I am of opinion that in any view of this case the statute did not begin to run from the date of the note in suit. Where a note is made payable on demand, simply, then the note is deemed to be due at its date, and may he immediately prosecuted, although an actual demand must he made, in order to entitle the holder to draw interest upon the principal sum. But by the addition of the words “■ with interest,” in the body of the note, a different rule obtains. Where these words are inserted, a presumption arises that the parties intended that the note should not he immediately due, hut for some customary mode of paying interest, as a quarter or a half year, or perhaps year. And following the decision of the Court of Appeals, in 23 N. Y. Sep. 28, the Supreme Court in the third district held that a note on demand, with interest, is not due until demanded, and was a continuing se
I think the plaintiff should have judgment.
Judgment affirmed.
Mullin, Morgan and Bacon, Justices.]