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trial. This action has been once before tried, before a referee, who repcrted in 'favor of the defendants; and on appeal from the judgment entered upon that report the judgment was affirmed by this court, in a well-considered opinion by Justice Landon, reported in 1 N. Y. Supp. 75. That decision has not been reversed, and, unless the essential facts have been changed on this trial so as to lead to a different result, must, we think, be regarded as stare decisis in this case. It is true, as the plaintiff saw fit to avail herself of the provisions of the statute providing for a new trial in actions of ejectment on payment of costs, that she is entitled to a new trial de novo, and to have her case disposed of substantially as if no trial had been previously had; but if, on such new trial, the facts have not been substantially changed, this ccurt should not disregard the light reflected upon the case by the examinations and adjudications of the court on the former trial. We have examined the evidence on this trial, and do not see that it is essentially changed, as to the location of the land actually embraced in the plaintiff's deed. Upon that question there seems, now, as on the former trial, a want of evidence fixing any definite starting point from which a survey can be made with sufficient certainty to locate this dividing line, with accuracy, within the narrow margin of 6 inches. Assuming, as we must, that the former decision on that question was correct, we see no change of facts which would change the legal conclusion reached on the former trial.

But it is insisted by the learned counsel for the appellant that the procf on the second trial clearly establishes in the plaintiff a 20 years' adverse possession of this strip of land, and that, therefore, the plaintiff is entitled to recover, even though the proof fails to show that it is embraced within the description in the plaintiff's deed, or covered by the allegations of her complaint. The plaintiff makes no claim in her complaint for land not embraced in lot No. 123, and seeks only to recover a part of that lot bounded on the north line of that lot. That claim is, therefore, inconsistent with a claim to recover lands lying northerly of that line. But the complaint does specifically describe the piece of land sought to be recovered, by boundaries, from which, if the plaintiff should recover, the locus in quo could be taken possession of by the sheriff, and the plaintiff put in possession. It is a strip 6 inches wide from front to rear, parallel with the north line of the lot, and extending 28 feet from Second street to the alley. If, therefore, the proof in this case establishes an adverse possession in the plaintiff in this strip, within the provisions of sections 370--372 of the Code, we think, under this complaint, she might recover. Upon this branch of the case there was evidence from which the jury might have found that these premises were held by plaintiff and her grantors, adversely, for more than 50 years before the new barn was constructed on the defendant's lot, in 1864, provided they found that the same was so inclosed and occupied as to create an adverse possession, within the provisions of sections 370--372 of

the Code of Civil Procedure. I think that within the case of Barnes v. Light, 116 N. Y. 34, 22 N. E. Rep. 441, the case, upon this branch, should have been submitted to the jury. In that case it was held that an action of ejectment can be maintained upon an adverse possession, even against the true owner, and several authorities are referred to, to sustain that position. As the plaintiff did not succeed in affirmatively proving that her deed covered this land, and her claim of title was not, therefore, founded upon a written instrument, it was incumbent on her to show an actual, continued occupation, under a claim of title, for more than * 20 years, in herself or her grantor, evidenced by a continued substantial inclosure. Code Civil Proc. $$ 370--372, supra. Upon this question there was evidence which, we think, raised a question of fact which should have been submitted to the jury. Judgment reversed, and a new trial ordered; costs to abide the event. All concur.



(Surrogate's Court, Herkimer County. July 23, 1891.) CLAIMS AGAINST DECEDENT'S EstatE-LIMITATIONS.

Under Code Civil Proc. $ 382, providing that suit on a contract obligation must be brought within six years, an offer to prove a claim on a note payable April 4, 1883, made in a proceeding to sell a decedent's land to pay his debts, on November 10, 1890, comes too late, though letters of administration were granted in 1887, and the administrator's final av. counting was not had until November 6, 1890.

Application by Josephine B. Burdick, administratrix of the estate of Byron L. Huntley, deceased, to sell his real estate to pay his debts. Objections to the claim of Esther A. Bentley sustained.

On April 1, 1882, Byron L. Huntley made, executed, and delivered his note, as follows: "$1,000.00

West Winfield, April 1st, 1882. “For value received, I promise to pay J. Frank Huntley or bearer one thousand dollars, with use, une year from date.

"Byron L. Huntley." The note was transferred by Huntley to, and is now the property of, Esther A. Bentley. On May 1, 1887, Byron L. Huntley died intestate, leaving a widow and several minor children. On December 19, 1887, letters of administration were issued to Josephine B. Huntley, the widow of the intestate, and Vose W. Palmer. The administrators advertised for claims against the estate of decedent for six months, commencing November 29, 1888. On the 24th day of June, 1889, Vose W. Palmer, one of the administrators, filed a petition for a final settlement of the accounts of the administrators, and such accounting was thereafter had, the account having been filed November 6, 1890; and a decree settling the accounts of the administrators was filed and entered in the surrogate's office on that day. By the account, and decree made thereon, it appears that the administrators received, in assets, the sum of $980; that claims of creditors had been presented and al. lowed, including the claim of Esther A. Bentley, to the amount of $1,850.09; and that there was $241.73 in their hands, which by suid decree was ordered paid to said creditors ratably. This proceeding, for the disposition of the real property of the deceased for the payment of debts, was commenced November 10, 1890, by the administrators, by filing a petition in this court, which alleged, among other things, that the deceased was the owner, in his lifetime, of certain real estate, upon which was a mortgage, which subsequent to his death was foreclosed, and a surplus arising therefrom, amounting to $1,101.41, paid to the county treasurer of this county; that the debts of decodent amounted to $1,608.36, exclusive of interest, and that the personal property of decedent was insufficient to pay his debts; that the decedent left a widow, one of the petitioners, and three niinor children, his heirs, named Lee Huntley, Adell Huntley, and Estella Huntley. Upon the hearing for the proof of claims in this proceeding, Esther A. Bentley appeared, and, upon offering proof of her claim, the special guardian of the infant heirs filed and interposed an answer pleading the statute of limitations, viz. "that the cause of action and claim now presented as aforesaid arose and accrued more than six years before the commencement of these proceedings." Proof was given of the making and ownership of the note; that it had been presented to the administrators, and admitted by them to be a valid claim; and that upon the final accounting they had paid upon the note $232.29.

Charles D. Thomas, for creditor, Esther A. Bentley.
A. B. Steele, special guardian, for the heirs.

SHELDON, S. The only question in this case is whether the right to the relief sought by the creditor in this proceeding is barred by the statute of limitations. The statute of limitations affects only the remedy. Kincaid v. Richardson, 25 Hun, 237; Rogers v. Murdock, 45 Hun, 30; Rose v. Henry, 37 Hun, 397; Johnson v. Railroad Co., 54 N. Y. 416. In the cases of Kincaid v. Richardson and Rose v. Henry it is held that the statute of limitation only affects the remedy by action, and that execution may issue on a judgment, although an action thereon would be barred by the statute. It is also held in Rose v. Henry that statutes of limitation must be strictly construed, and it would seem to be the duty of the court to save the claim from the bar of the statute, unless it appears that the clear and necessary construction of the various provisions applicable forbids. Section 382, Code Civil Proc., provides that an action upon a contract obligation or liability, or an action to recover upon a liability created by statute, must be brought within six years, and "special proceeding" may be read for "action," in the same provision. Section 415, Code Civil Proc., provides that "The periods of limitation prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defense, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or proceeding."

In this case a right to maintain an action (not a special proceeding) arose April 4, 1893, against the decedent; and, had he lived, that right of action would have existed six full years, and have been as perfect the last day of the six years as the first. Huntley died May 1, 1887, and personal representatives were appointed, who took title to his personal property, and who were liable to be sued, in the place of decedent, upon the cause of action against him. The right to that relief was based simply on

the fact that Huntley had not performed what he had contracted to do, and the relief to be sought was the judgment of the court that the plaintiff recover the sum which Huntley had contractul to pay. It did not become necessary in this case for the creditor to obtain a judgment against the administrators, in order to exhaust the personal property of decedent in payment of his claim, for the claim, on presentation, was admitted, and the creditor's share of the personal estate afterwards paid to her, in due course of administration. The statute of limitations commenced running against an action on April 4, 1883, because an action might then have been brought. When did the statute of limitations commence running against this special proceeding? When did the right to relief by this proceeding accrue to this creditor? In considering the question of when the "right to relief” by this special proceeding accrued, the nature of the relief may well be examined. The relief is equitable in its nature, and very comprehensive. It comprises the taking and sale, under the direction of the court, of all the real estate of which the decedent was seised at his death, whether in the hands of his heirs or devisees, or their grantees, and the equitable distribution of the money derived from such sale. in payment of the claims existing against the decedent at the time of, and which survived, his death, and among all parties equitably entitled thereto. The proceeding is against the land. The necessary parties are the creditors, all persons interested in the land, and the personal representatives of the decedent. The facts which must exist, and be established, in order to entitle a party to the relief, are the death; the appointment of personal representatives; the existence of claims against decedent, valid at the time of his death, to an amount that the personal assets applicable will be insufficient to pay; and “that all the personal property of the de. cedent which could have been applied to payment of the decedent's debts and funeral expenses has been so applied, or that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money, and applying it to the payment of those debts and funeral expenses, and that it is insufficient for the payment of the same;" and that the decedent was the owner, at the time of his death, of the land sought to be taken. The existence of these facts gives the right to relief. Can the right to relief be said to have accrued until these facts all exist? Did the statute of limitations commence running, as against ihis right of relief, until these facts existed?

In Mead v. Jenkins, 95 N. Y. 31, the facts were as follows: The claim was due February 11, 1871, and the intestate died March 19, 1871. Letters of administration were granted April 14, 1871. The proceedings in question were commenced February 6, 1850. The administrators accounted on the 17th day of October, 1877. The court, upon these facts, held as follows:

"The proceedings here could not be commenced until after the account. ing, and hence the statute did not commence to run until the accounting, in 1877. The proceedling was commenced February 6, 1880, about two years

after the accounting, and the statute had not then run, so as to constitute a bar."

The case of Merritt v. Reid, 13 N. Y. Wkly. Dig. 453, was an action on a note for six months, dated August 7, 1872.

The ac tion was commenced October 14, 1879. The note was made by a corporation called the Manhattan Sewing Machine Company, and the defendant was a stockholder of that company. By the provisions of the statute a stockholder could not be made liable for a debt of the company unless an action to recover the debt should be brought against the company within a year from the time the debt became due, and judgment recovered in such action, and execution issued upon such judgment returned unsatisfied. Execution was returned unsatisfied October 23, 1873, upon the judg. ment against the company. The defense was the six-years stat. ute of limitations, and in the trial court it was sustained. The court, on appeal, held that, as the return of execution unsatisfied against the corporation was a prerequisite to an action against a stockholder, the right of action against him did not ac rue, and the statute did not commence to run, until the return of the execution, and that the action was brought in time. It would follow from this case that, if the claim was a valid and enforceable one at the time when the new right of relief arose upon it, the new right of relief would not be lost at the expiration of six years from the time when the note was due. The same doctrine is stated in Duckworth v. Roach, 81 N. Y. 50.

Upon the foregoing considerations, and the authority of Mead V. Jenkins, I should be of opinion that the claim of Esiher A. Bentley is not barred by any statute of limitations, were it not for the case of Church v. Olendorf, 49 Hun, 440, 3 N. Y. Supp. 557, which was decided in this department in 1888. The case of Med v. Jenkins, 95 N. Y. 31, is cited and recognized as authority for the pronosition:

"As the law stood prior to September 1, 1880, the respondent could not have commenced such a proceeding as this until after the executor or administrator had rendered his account, and thus such a proceeding was stayed, by statutory prohibition, until September 1, 1880."

It seems difficult to distinguish, as to statutory prohibition, between the requirement that an accounting shall be had before this proceeding be commenced and the requirement, as the law stands now, that letters of administration shall have been granted, and the further requirement that the personal estate shall have been applied to the payment of the claims, or that in effect. It may be claimed that the case of the issuing of letters as a prel'equisite differs from the case of an accounting, because thic creditor can himself apply for letters. But so could the creditor, as the law stood prior to 1880, apply, after 18 months, for an ac. counting; and in the case of Mead v. Jenkins the accounting was more than six years and six months after letters were issried. It seems clear, therefore, that the question of whether or not the running of the statute of limitations is suspended by statutory prohibi

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