Hopkins v. Lincoln Trust Co.

• Decision Date: 18 April 1922
• Citation: 135 N.E. 267,233 N.Y. 213
• Parties: HOPKINS v. LINCOLN TRUST CO.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 213

135 N.E. 267

HOPKINS

v.LINCOLN TRUST CO.

Court of Appeals of New York.

April 18, 1922.

Action by Charles C. Hopkins against the Lincoln Trust Company. An order of the Special Term, denying defendant's motion for judgment on the pleadings (115 Misc. Rep. 257,187 N. Y. Supp. 883), was affirmed by the Appellate Division (199 App. Div. 909,190 N. Y. Supp. 931), and defendant appeals by permission, with questions certified by the Appellate Division.

Reversed, complaint dismissed, and certified questions answered.

See, also, 199 App. Div. 956,191 N. Y. Supp. 931.

The Appellate Division certified the following questions:

(1) Did the legislature have the constitutional power to make the amendments to section 382 of the Code of Civil Procedure, paragraph 5 (chapter 480, Laws of 1920), retroactive in its effect, so as to resurrect and revive a cause of action which had already been barred by the statute as it theretofore existed?

(2) Is this cause of action barred by the statute of limitations?

Appeal from Supreme Court, Appellate Division, Fourth department.

Middleton S. Borland and Percy F. Griffin, both of New York City, for appellant.

Nelson E. Spencer and Willis A. Matson, both of Rochester, for respondent.

CARDOZO, J.

The plaintiff sues at law to recover damages for fraud. The wrong was done on August 20, 1912, and a cause of action then accrued. The remedy was barred by limitation six years thereafter, on August 20, 1918. Miller v. Wood, 116 N. Y. 351, 22 N. E. 553. Two years later the law was changed. As amended in 1920, the statute says that, in ‘any action to procure a judgment on the ground of fraud,’ the cause of action shall not be ‘deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.’ Code of Civil Procedure, § 382, subd. 5, as amended by Laws 1920, c. 480, in effect September 1, 1920. That was formerly the rule where the action was brought ‘to procure a judgment, other than for a sum of money, on the ground of fraud,’ in a case which on the 31st day of December, 1846, was cognizable by a Court of Chancery. Carr v. Thompson, 87 N. Y. 160;Lightfoot v. Davis, 198 N. Y. 261, 91 N. E. 582,29 L. R. A. (N. S.) 119, 139 Am. St. Rep. 817,19 Ann. Cas. 747. The amendment establishes the same rule of limitation in any case of fraud, whether the remedy is equitable or legal. The plaintiff began this action on September 1, 1920. The allegation is that he did not discover the fraud till May 1, 1919. The question is whether he is in time.

[1] We find no token of a purpose to apply the statute by relation to rights already barred. Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 270, 130 N. E. 288;Jacobus v. Colgate, 217 N. Y. 235, 111 N. E. 837, Ann. Cas. 1917E, 369. The power thus to revive has been upheld in some jurisdictions. Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. In others, it has been denied or doubted. Board of Education of Normal School Dist. v. Blodgett, 155 Ill. 441, 448, 40 N. E. 1025,31 L. R. A. 70, 46 Am. St. Rep. 348;Eingartner v. Illinois Steel Co., 103 Wis. 373, 380, 79 N. W. 433,74 Am. St. Rep. 871;Danforth v. Groton Water Co., 178 Mass. 472, 476, 478, 59 N. E. 1033,86 Am. St. Rep. 495;Dunbar v. Boston & P. Railroad Corp., 181 Mass. 383, 386, 63 N. E. 916. In our own state there are conflicting dicta. Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638,14 L. R. A. 59;House v. Carr, 185 N. Y. 453, 78 N. E. 171, 6 L. R. A. (N. S.) 510, 113 Am. St. Rep. 936, 7 Ann. Cas. 185; contra, Germania Savings Bank of Kings County v. Village of Suspension Bridge, 159 N. Y. 362, 368,54 N. E. 33. A decision of the case before us does not compel a choice between them. Revival is an extreme exercise of legislative power. The will to work it is not deduced from words of doubtful meaning. Uncertainties are resolved against consequences so drastic. Reading this amendment in the light of related sections, we find, not the disclosure, but the disclaimer of a purpose to restore what has been lost.

[2] The amendment is part of chapter 4 of the Code of Civil Procedure, which states the rules of limitation. Section 414, defining the application of the chapter, excludes ‘a case where the time to commence an action has expired when this act takes effect.’ Section 414, subd. 4. The new Civil Practice Act contains a like exception. Section 10, subd. 2. The Revised Statutes and the old Code of Procedure went farther, and excepted not only rights extinguished, but also rights accrued. R. S. pt. 3, c. 4, tit. 2, § 45; Code of Procedure, § 73. We held, construing the Code of Procedure, that retroactive force being denied to the original enactment, was denied also to an amendment. Goillotel v. Mayor, etc., of City of New York, 87 N. Y. 441. We think amendment has remained equivalent to enactment under the Codes of Practice that have...