Hamilton v. Royal Ins. Co. of Liverpool

• Decision Date: 07 June 1898
• Parties: HAMILTON v. ROYAL INS. CO. OF LIVERPOOL, ENG.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 327

50 N.E. 863

HAMILTON

v.ROYAL INS. CO. OF LIVERPOOL, ENG.

Court of Appeals of New York.

June, 7, 1898.

Appeal from supreme court, general term, Fifth department.

Action by John B. Hamilton, administrator of James J. Quinn, deceased, against the Royal Insurance Company of Liverpool, England.

This action was upon a policy of insurance by which the defendant insured James J. Quinn against loss and damage by fire to certain personal property contained in his dwelling house in the village of Charlotte, N. Y. The policy was a standard fire insurance policy of the state of New York, and contained the following clause: ‘No suit or action on this policy, for the recovery of any claim, shall be maintainable in any court of law or equity, * * * unless commenced within twelve months next after the fire.’ The fire occurred on the 16th of January, 1892. On the 14th day of January, 1893, the plaintiff's intestate sent the summons in this action to the sheriff of Albany county by mail, with directions to serve it upon the superintendent of insurance. The summons was received in time, but the superintendent was not then in Albany, and the sheriff, being in doubt as to the validity of a service upon a deputy or clerk, postponed its service until his return, which was on the 17th day of that month. On that day the summons was personally served. This constituted the only service of the summons in the action. That it was a sufficient commencement of the action, if made in time, is not denied. The defendant interposed as a defense to the action that it was not commenced within the time limited by the provisions of the policy. On the trial the complaint was dismissed upon that ground, and a motion for a new trial was directed to be heard in the first instance at a general term. That court overruled the plaintiff's exceptions, denied his motion for a new trial, and directed judgment for the defendant dismissing the complaint, with costs. 30 N. Y. Supp. 714. It is from that judgment that this appeal is taken. Reversed.

Vann and Gray, JJ., dissenting.

Horace G. Pierce, for appellant.

William N. Cogswell, for respondent.

MARTIN, J. (after stating the facts).

The only question involved in this case is whether section 399 of the Code of Civil Procedure applies to the limitation contained in the policy in suit. The section, in substance, provides that an attempt to commence an action in a court of record is equivalent to the commencement of it, within each provision of chapter 4 of that act, which limits the time for commencing an action, when the summons is delivered to the sheriff of the proper county with the intent that it shall be actually served. That the summons in this case was so delivered within 12 months after the fire is expressly admitted. The sole claim of the respondent is that the provisions of section 399 have no application to the contractual limitation of the parties, and hence that the claim was barred when the summons was served.

To a better understanding of this question, it is perhaps well to consider to some extent the rules relating to the limitation of civil actions, how created, and upon what they are based. No rule limiting the time within which actions ex contractu might be brought existed at common law, but the limitation of actions is a creation of statute. People v. Gilbert, 18 Johns. 227;Wilcox v. Fitch, 20 Johns. 472. The English statute (21 Jac. I.) not only superseded the earlier statutes of that jurisdiction upon the subject, but formed the basis of similar statutes in many of the United States, and its leading provisions have been, to a greater or less extent, incorporated into the statutes of all. The present statute of limitations in this state, in most of its features, follows the English statute, not only as to the rules and periods of limitation, but in its general and special provisions relating to the subject. When the present statute was adopted the right of parties to make a contract which reasonably limited the time within which an action upon it should be commenced had been established by the decisions of this court. Ames v. Insurance Co., 14 N. Y. 253;Roach v. Insurance Co., 30 N. Y. 546. Presumptively, with that fact in view, the legislature enacted chapter 4 of the Code of Civil Procedure. That statute was obviously intended to embrace the entire law upon the subject of the limitation of actions, including the manner of its application, the exceptions to its effect in special cases, and the procedure for its enforcement. That such was its purpose is evinced by the nature of its provisions, which fully and completely cover those subjects. It contains provisions which are made specially applicable where a party is an infant, insane or imprisoned, in case of death, or the absence of the defendant from the state, where either party is an alien, where a former judgment has been reversed, where the action has been stayed or the party enjoined, where it is for misconduct by an agent, where several disabilities exist, where a demand is necessary before suit, where an arbitration has been entered into and revoked, and where an action is discontinued after answer. It also defines what constitutes adverse possession, declares when a cause of action accrues on a current account, when disabilities must exist to be effective, what acknowledgment or new promise is necessary to relieve from its operation, its effect upon a counterclaim, when an action shall be deemed commenced, the effect of an attempt to commerce an action, and how the statute is to be made available. These general provisions constitute essential and important elements of the statute. In their absence, its enforcement in many cases would be difficult or impossible, and in others would produce inequity and grave injustice. That they were intended to apply to all the limitations created by that statute there can be no doubt, and no good reason is perceived why they should not apply to limitations created by special statute or the written contract of the parties. If they are necessary to modify or effectuate one class, they are equally so as to others. It is said, however, that the statute does not in express terms make them applicable to limitations created by special statute or written contract. While that is true, it is also true that the statute does not provide that they shall not apply.

To sustain the decision of the court below, great reliance is placed upon section 414 of the Code, which declares that the provisions of chapter 4 constitute the only rule of limitation applicable to a civil action, except in a case where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties. It is to be observed that the provisions of that section refer only to rules of limitation contained in that chapter, and do not attempt to deal with any other subject. Obviously the phrase ‘rules of limitation’ was not intended to include or affect the general provisions of that chapter to which we have adverted, but refers only to periods of limitation. That section does not exempt limitations which are specially prescribed by law, or by the written contract of the parties, from the operation of any of the provisions of chapter 4, except so far as they establish different periods of limitation. Indeed, this court has distinctly held that section 414 does not exempt limitations specially prescribed by law from any of the provisions of chapter 4, except those which establish different periods of limitation. Hayden v. Pierce, 144 N. Y. 512, 518,39 N. E. 638;Titus v. Poole, 145 N. Y. 414, 40 N. E. 228. In the Hayden Case this court decided that the words ‘rules of limitation’ did not refer to the other provisions of chapter 4, but only to those fixing periods of time within which the various classes of actions specified are to be brought. In the Titus Case it again held that the words ‘rules of limitation’ referred to the specific periods prescribed in titles 1 and 2 of chapter 4 for the bringing of actions, and did not restrict the application of the general provisions of the act to the limitations of the general statute. In each of the cases cited a question arose in regard to a limitation specially prescribed by law. In one case it was held that the general provisionsof section 401 were applicable to such special limitations, as well as to the limitations established by chapter 4, and in the other it was held that section 405 had a similar application.

The principle upon which the decisions in those cases rest has an important, if not a controlling, bearing upon the question under consideration. If, as this court there held, limitations specially prescribed by law fall within, and are governed by, the general provisions of chapter 4, it is difficult to perceive any good reason why they do not equally apply to limitations prescribed by the written contract of the parties. The language of that section clearly shows an intent to place limitations specially prescribed by law and those prescribed by the contract of the parties in the same category, and to make them subject to the same rules. The view that these provisions apply to limitations prescribed by contract, as well as to a limitation specially prescribed by law, was clearly expressed in the opinion of this court in Hayden v. Pierce. In that case Judge O'Brien, after referring to many of the general provisions of the statute to which we have adverted, and after declaring that they were not embraced in the term ‘rules of limitation,’ said: ‘The very subdivision of that section (section 414, subd. 1) now under consideration would seem to except from the operation of the chapter a case where ‘a shorter limitation is prescribed by the written contract of the parties.’ This permits the parties themselves to agree upon a shorter statute, but in such a case what reason is there for supposing that the...