Acker v. Acker , 23 N.Y. Sup. Ct. 173 ( 1878 )

Gilbert, J.:

Tliia is an action to foreclose a mortgage. The defense is the statute of limitations. The period limited for commencing the action was twenty years after the cause of action accrued. (Code of Proc., § 90.) The cause of action accrued November 1, 1857, and the action was commenced December 10, 1877. When the cause of action accrued the plaintiff was a married woman, and under disability to sue. It was provided by section 101 of said Code that “ the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy, nor can it” (the period limited) “ be so extended in any case longer than one year after the disability ceases.” I think that the plaintiff's disability was removed by the act concerning the rights and liabilities of husband and wife, passed March 20, I860, which conferred upon married women capacity to sue and be sued. (Laws, 1860, ch. 90, §7; Ball v. Bullard, 52 Barb., 141-146.) Such disability certainly ceased upon the death of the plaintiff’s husband in September, 1866, and it was finally dropped from the enumeration of disabilities contained in the statute of limitations by an amendment of the Code of Procedure passed in 1870.

Whether the action was barred by the statute of limitations depends upon the construction which shall be given to section 101 of the Code of Procedure, or rather to that part of it which has been quoted above. I am of opinion that that section extended —that is, lengthened, the period limited five years, provided the disability lasted so long; but that if the disability did not last so long, then that said section extended the period limited for such a time as would end at the expiration of one year after the period of limitation had elapsed and the disability had ceased. Surely the Legislature did not intend that if the disability ceased more than a year before the time limited had elapsed, there should be no extension of such time. Their intention plainly was to give to married women at least one year in addition to the time limited. Such construction would give the plaintiff twenty-one .years from the time the cause of action accrued, viz., November 1, 1857, in which to bring her action, if her disability ceased in consequence of the passage of the act of 1860 cited ; but if it did not cease until the death of her husband, then by such construction she would have twenty years from November 1, 1862, for that purpose. In either case the time had not expired when the action was brought.

As I understand the decision of the Court of Appeals in Dunham, Ex’r, v. Sage (52 N. Y., 229), the same construction of said section 101 was there adopted. In that case the time limited for commencing the action was six years. The cause of action accrued August 31, 1857, the disability ceased February 4, 1862, and the action was commenced February 18, 1867. The court held that the action had been barred, for the reason that the disability had not continued five years, and that, therefore, the plaintiff had only one year after the disability ceased, in addition to the general limitation of six years, in which to bring her action. The judge, who delivered the opinion of the court, after illustrating the meaning of the statute, or attempting to do so, summed up as follows : “ Thus the party has six years in any event; five years additional, in case the disability so long continue; but in any event only one year additional after the disability ceases.” Such construction corresponds with the change of phraseology adopted by the Legislature in enacting the provision on this subject, contained in the Code of Civil Procedure, § 396. Applying that construction to the 'case before us, the action is not barred. This conclusion being decisive, we need not consider the other questions which have been presented.

The judgment must be reversed, and the usual judgment must be entered for the plaintiff, with costs.

BakNakd, P. J., concurred; DykmaN, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.