Van Saun v. Farley

4 Daly 165 | New York Court of Common Pleas | 1871

By the Court.^*—Van Brunt, J.

—The only question which it is necessary to consider in this case is, was the claim rejected by the defendant? It is claimed, upon the part of the defendant, that the service of the notice of rejection at the office of Mr. Robinson, on the 22d day of March, 1867, was sufficient to set the short statute of limitations in motion, and consequently this action, not being brought within six months after the alleged rejection of the claim, is barred by that statute.

It will not be pretended that a mere rejection of a claim, without notice' of such rejection to the owner of the claim, would set the statute in motion, because there is no other way than such notice by which the owner of the claim can be made aware that his action must be commenced within six months after such rejection, or his right to bring an action will be lost. The statute does not mean, by rejection, merely a mental emotion, but the action of the mind must be followed by some outward act by which the owner of the claim may be apprised of the result arrived at. It has been repeatedly held that this statute, unlike the other statute of limitations, is not a statute of repose, but is rightly penal in its character, and should be strictly construed (Broderick v. Smith, 3 Lans. 27, and cases there cited).

The party then invoking the aid of the statute must show a strict compliance with all its provisions. We h ave already shown, that in order to make a rejection of a claim complete, notice must be given to the owner of<such claim. In this case, such notice was left at the office of the attorney who was employed by the plaintiff to make out her claim in legal shape, and cause it to be properly presented. Mr. Bobinson was her attorney for this purpose,- and there is no-evidence that he was such for any other purpose. If defendant chose to serve the notice of rejection upon Mr. Bobinson, it was her duty to show that the plaintiff had authorized him to act for her in the receipt of such a notice of rejection. No such authority is shown. Nothing is to be implied in order to enable the defendant to avail herself .of the statute. It appears that prior to the commencement of this action, the plaintiff never was apprised of the existence of such a notice of rejection, and for the reasons above stated, we are of the opinion that the service of the notice upon Mr. Bobinson was not sufficient to set the statute in motion, and debar the plaintiff from commencing this action after the lapse of six months from the time of the service of such notice.

The judgment must be affirmed, with costs.

Judgment affirmed.

* Present, Daly, Oh. J., Van Brunt and Labremore, JJ.