McDonough v. Cestare

• Decision Date: 11 February 1957
• Citation: 3 A.D.2d 201,159 N.Y.S.2d 616
• Parties: Anne McDONOUGH, as Administratrix of the goods, chattels and credits of Robert M. McDonough, deceased, Respondent, v. Anthony J. CESTARE, as Administrator of the goods, chattels and credits of Genevieve Shinn, deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 616

159 N.Y.S.2d 616

3 A.D.2d 201

Anne McDONOUGH, as Administratrix of the goods, chattels and credits of Robert M. McDonough, deceased, Respondent, v. Anthony J. CESTARE, as Administrator of the goods, chattels and credits of Genevieve Shinn, deceased, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 11, 1957.

John J. Macchia, New York City, for appellant.

Leo F. McGinity, Mineola, for respondent.

NOLAN, Presiding Justice.

In this action to recover damages for wrongful death, the amended answer sets up, as a defense, the two-year Statute of Limitations contained in section 130 of the Decedent Estate Law. Respondent's intestate died in August, 1953. Genevieve Shinn, appellant's intestate, died in October 1953. The action was commenced on May 2, 1956. Respondent invokes the provisions of section 21 of the Civil Practice Act against appellant's claim that the action is barred. That section insofar as pertinent reads as follows:

'The term of eighteen months after the death within this state of a person against whom a cause of action exists * * * is not a part of the time limited for the commencement of an action against his executor or administrator.'

The sole question to be determined on this appeal is whether the provisions of section 21 may be applied in an action brought pursuant to section 130 of the Decedent Estate Law, which provides that 'Such an action must be commenced within two years after the decedent's death.'

It is appellant's contention that section 21 has no application to such an action. He invokes the familiar rule that when the Legislature creates a new right of action, otherwise unknown to the law, and in the statute of creation imposes a time limitation, that limitation is part of the grant of power, and the bringing of the action is subject to that limitation and no other. Cf. Cimo v. State of New York, 306 N.Y. 143, 150, 116 N.E.2d 290, 294, and cases there cited. Appellant also argues that the application of section 21 is precluded by section 10 of the Civil Practice Act which provides that the provisions of article 2 of the Civil Practice Act constitute the only rules of limitation applicable to a civil action except in a case where a different limitation is specially prescribed by law.

It appears to us that these arguments overlook the fundamental difference between limitations upon a remedy and limitations which form an essential or integral part of the right itself. Cf. Sharrow v. Inland Lines, Ltd., 214 N.Y. 101, 108 N.E. 217, L.R.A.1915E, 1192; Kerr v. St. Luke's Hosp., 176 Misc. 610, 28 N.Y.S.2d 193, affirmed 262 App.Div. 822, 29 N.Y.S.2d 141, affirmed 287 N.Y. 673, 39 N.E.2d 291. They also fail to take into account the distinction between the periods of limitation prescribed by article 2 of the Civil Practice Act and the beneficial provisions of that article which prescribe disabilities and circumstances under which in given cases the Statute of Limitations is suspended. Cf. Conolly v. Hyams, 176 N.Y. 403, 68 N.E. 662; Hoffman v. Delaware & Hudson Co., 163 App.Div. 50, 148 N.Y.S. 509; Kerr v. St. Luke's Hosp., 176 Misc. 610, 28 N.Y.S.2d 193, supra.

We agree that the statute, by which the cause of action for damages from injuries resulting in death was created in 1847, imposed a time limitation which was an integral part of the right to sue. That statute, L. 1847, ch. 450, authorized such an action, 'provided that every such action shall be commenced within two years after the death of such deceased person.' (Emphasis supplied.) It is significant that the limitation of time in the act of 1847 was put in the form of a proviso. The law continued substantially as enacted until 1880, when the statutory provisions relating to actions for wrongfully or negligently causing death were transferred to the Code of Civil Procedure. This transfer, however, was accompanied by a change in phraseology, so far as the limitation of time was concerned. The time limitation no longer appeared as a proviso; the words 'provided that' were omitted, and the clause was made to read merely 'Such action must be commenced within two years after the decedent's death.' Sharrow v. Inland Lines, Ltd., 214 N.Y. 101, 104-105, 108 N.E. 217, 218, supra.

The present statute, Decedent Estate Law, § 130, was taken from section 1902 of the Code of Civil Procedure without change. The effect of the change in phraseology of the statute in 1880 was considered by the Court of Appeals in the Sharrow case, supra, 217 N.Y. at page 105, 108 N.E. at page 218, in which Chief Judge Willard Bartlett, writing for the majority of that court said:

'I cannot agree that this constitutes a mere change of language without any change in meaning or effect. The nature of a proviso has long been well understood by legislators as well as lawyers, and I think we should not be justified in holding that the omission of the words 'provided that,' which were contained in the act of 1847 was unintentional or ineffectual. Assuming, as I do, that so long as the time limitation remained a proviso it related to the right rather than the remedy, I think there were reasons which might well have influenced the legislature to make a change in the law in this respect. The right of action to recover damages for wrongfully causing death which has since been made a constitutional right by the action of the people, was thereafter to be provided for and regulated, not in a separate statute, but in a general statute designed to be a permanent part of our system of jurisprudence. Suits to enforce it had ceased to be special and peculiar. They had become a familiar feature in the business of our courts. No good reason existed why the benefit of the general exceptions given by law to the parties against whom the bar of the statute of limitations is invoked should not be given to plaintiffs in this class of cases; and it seems to me that it is not going too far to suppose that this consideration may have led to the alteration in the language of the statute.' We find nothing in the later decisions of the Court of Appeals which indicates any deviation from the conclusion stated in the Sharrow case, supra. It may be noted also that the right of action does not depend entirely on the provisions of section 130 of the Decedent Estate Law. As Chief Judge Bartlett stated, it is now preserved by our Constitution, N.Y. Const., art. I, § 16, and it has been further provided by section 118 of the Decedent Estate Law that the cause of action shall not be lost because of the death of the person liable and that the action may be brought against his executor or administrator. This is such an action, brought against appellant as the administrator of the person alleged to be liable for damages for wrongfully causing the death of respondent's intestate, and appears to present the precise situation contemplated by section 118 of the Decedent Estate Law and section 21 of the Civil Practice Act. As was said in Butler v. Price, 271 App.Div. 359, 362, 65 N.Y.S.2d 688, 690 'The Legislature seems to have recognized that there is inevitably a period of time following the death of a person when it would be difficult, if not impossible, to commence an action against his estate. In order, therefore, to prevent any hardship or loss of rights to a plaintiff under such circumstances, the Legislature by its enactment of section 21 suspended the running of the statute for a period of eighteen months after the death of the person against whom a cause of action exists.' We see no reason why the provisions of section 21 may not be applied as against the time limitation provided in section 130 of the Decedent Estate Law, which operates on the remedy but not on the right to sue.

Further support for our conclusion is furnished by the decisions of this and other courts involving the application of other provisions of article 2 of the Civil Practice Act in similar actions.

Philips v. Apuzzo, 241 App.Div. 762, 270 N.Y.S. 973, affirmed 266 N.Y. 579, 195 N.E. 208, was an action to recover damages for the wrongful death of an intestate who died in September, 1930. The action was not commenced until February, 1933. There, as here, the answer set up the defense that the action had not been commenced within two years after the death of the...