Wilder v. Ballou

| N.Y. Sup. Ct. | Feb 15, 1892

Martin, J.

The only question that need be considered on this appeal is whether the plaintiff’s right to maintain this action was barred by the six-months limitation provided for by section 1822 of the Code of Civil Procedure. That the claim which was the foundation of this action was presented to the defendant as executor, and by him disputed and rejected, more than six months before the commencement of this action, was amply proved, and undisputed. The appellant, however, seeks to avoid the effect of the limitation provided for by section 1822 on the theory that section 406, which declares that “ where the commencement of an action has been stayed by injunction, or by other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action,” was applicable to this case, and that he was stayed by the order of the special term during the time the order reviving and continuing that action was in force.

The first question presented is whether the provisions of section 406 are applicable to the limitation provided for by section 1822. It is contended by the respondent that the general provisions contained in chapter 4 of the Code of Civil Procedure are not applicable to the special limitation provided for by section 1822. That question can hardly be regarded as an open one in this court. In Titus v. Poole, (Sup.) 14 N.Y.S. 678" court="N.Y. Sup. Ct." date_filed="1891-04-15" href="https://app.midpage.ai/document/titus-v-poole-5500783?utm_source=webapp" opinion_id="5500783">14 N. Y. Supp. 678, we held that section 405 was applicable in a case where the limitation provided for by section 1822 was pleaded as a defense. If that decision was correct, it would seem to follow that section 406 is applicable to the case at bar, and that the time, if any, during which the commencement of this action was stayed by an order of the court, was not a part of the time limited for the commencement of the action. The contention of the respondent is that the decision and order made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings on his claim, and that there was no absolute order either continuing such action after such stipulation was given or in any way staying the commencement of an action. He also contends that the only order granted was a provisional one, and that whether there was to be any stay was wholly dependent upon the consent of the plaintiff; that, if there was any stay of proceedings, it was by virtue of the stipulation of the plaintiff, and not otherwise. On the other hand, the appellant claims that such decision and order constituted a stay of proceedings by an order of court, and was within the provisions of section 406 of the Code; that although the decision was conditional, yet, when the plaintiff accepted its terms, and entered an order whereby the motion was granted, and he was directed to give a stipulation staying proceedings on his claim, the stay was in pursuance of an order of the court, and therefore within the spirit, if not within the letter, of that section. There seems to be much force in this claim. The decision made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings, but the order which was entered by the plaintiff in pursuance of that decision was an order actually reviving and continuing the action against the defend - ant, and it in effect required the plaintiff to give a stipulation staying proceedings on his claim while that order was in existence. This we regard as a fair construction of the provisions of the order. The order, and not the memorandum of the judge, must control. While the order did not, in terms, stay the commencement of an action by the plaintiff upon his claim, it required him to stipulate to stay proceedings thereon while it stood, which was tantamount to, and in effect an order for, such a stay. This question may not, perhaps, be entirely free from doubt, but when we consider this order in the light of the circumstances under which and the purpose for which it was granted we are led to the conclusion that it in effect stayed the commencement of an action by the plaintiff upon his claim, and was within the spirit of section 406. We are therefore of the opinion that the plaintiff was stayed by an order of the court from the commencement of an action upon his claim during the continuance of such order, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action. Hence it follows that the judgment appealed from should be reversed. Judgment reversed, and a new trial ordered, with costs to abide the event.

Merwin, J., concurred. Hardin, P. J., not voting.