(dissenting):
This proceeding was commenced by notice of motion for a peremptory writ of mandamus requiring Hugh J. Grant, late sheriff of the city and county of New York, forthwith to execute, acknowledge and deliver a deed of certain premises which had been sold by him as sheriff under an execution. The affidavit upon which the application was granted alleged that on the 13th day of May, 1884, judgment was entered in the office of the clerk of the Oity Court in an action against one Bridget Hogan, and such judgment was duly docketed; that execution was issued on said judgment on the 5th day of April, 1887, and that on the 2d of June, 1887, Grant, then *244sheriff of the county, of New .York, sold, according, .to law, all the right, title and interest of Bridget Hogan in and to the lands and premises described; that one Hutchinson became the purchaser, and on the second of June the said sheriff executed- and delivered tó him a certificate of salé; that on the 4th of January, 1888, Hutchinson, for a valuable consideration, duly assigned said certificate to the relator by a written assignment, and said certificate and assignment were duly filed on January 5, 1888, in the office of the clerk of the county of New York; and that -the reason the petitioner has not heretofore demanded a deed from said Grant is that the-premises have been in the possession of her husband since October, 1886, and the petitioner did not understand the. necessity of perfecting her title by such deed. No demand was made upon the sheriff for the deed until the 21st day of November, 1900, more than twelve years after the relator became ■ entitled to it, and the petitioner’s husband was in possession of the premises under a deed from Davidson, late sheriff of the county of New York, dated October 13, 1886, and recorded in the register’s office October 26, 1896. On these papers the court below granted the peremptory writ of mandamus, from which Grant appeals.
I think that the right to .institute this proceeding -was lost by the lapse of time, and that the court below should have denied the application on that ground, The relator had the right ■ to demand ■this deed from the sheriff on the 3d of September, 1888 ; and upon the refusal of the sheriff to deliver the deed at that time, she had the right to institute a proceeding for a mandamus to' require him to perform his official duty. She 'made no such demand, -nor did she institute any proceeding to obtain the deed for over twelve years, when the sheriff had been for many-years out of office. Whether or not a writ of mandamus will be granted is a question addressed to the sound judicial discretion of the court, and any gross loches on the part of the applicant will justify the court in refusing to issue the writ, atad this irrespective of any Statute of Limitations. We have lately, applied this principle in many cases where a mandamus for reinstatement to public office from which a person was illegally removed has been applied for. (People ex rel. Croft v. Keating, 49 App. Div. 123; People ex rel. Young v. Collis, 6 id. 467.) I can see no reason why the same rule is not applicable to the case at *245bar, irrespective of the statutory limitation as to.the time in which a proceeding of this character can be commenced.
I think, however, that the institution of this proceeding was barred by the Statute of Limitations. An application for mandamus is a special proceeding. (Code Civ. Proe. § 3334.) By section 388 of the Code it is provided that “ an action the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.” And if this relief were sought by an action, this section would apply and the time within which the statute would be a bar would be ten years from the time when the cause of action accrued. By section 414 of the Code it is provided : “ The provisions of this chapter apply, and constitute the only rules of limitation applicable to a civil action or special proceeding,”— except in certain specified cases which do not apply to this proceeding. The section then says: “The word ‘ action ’ contained in this chapter is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action.” And Mr. Throop’s note to this section shows that this general language was intended to make the bar of the statute apply to a special proceeding. By section 415 of the Code it is provided : “ 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, defence 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 a defendant in the particular action or special proceeding.”
I think, therefore, that a proceeding to enforce a right or compel the performance of an obligation by another, whether it be in ah action or a special proceeding, is governed by the limitations prescribed by this chapter. There would seem to be several cases, however, which, without examining the question, have assumed that there was no Statute of Limitations applicable to a proceeding for a writ of mandamus. People ex rel. Millard v. Chapin (104 N. Y. 96) was a case in which the court below granted a mandamus requiring the State Comptroller to refund to the petitioner the purchase money paid on an invalid sale of land for taxes. The Attorney-General at the trial does not seem to have taken the point that the *246issuance of this writ was regulated by the Statute of Limitations, but the court in reversing the order granting the mandamus said: “ On the contrary, Osborn, if he had any rights, slept upon them so long that he must be deemed to have acquiesced in the claim of Yiele and of Peck, or at least to have consented by his silence andina ction to the dealings of the comptroller with them as the lawful assignees of the purchaser. ■ And although the Statute of Limitations does not prevent the issuing of the writ of mandamus, the damage and inconvenience resulting from the lapse of time are to be considered, and the writ should not be granted after the period fixed as a bar for actions has expired. * * * It (the writ) may also, in the discretion of the court, be denied when the delay in ■moving it is unreasonable, although it falls short of the time given for commencing actions, but after that time when the delay is unexplained and unaccounted for, it ought not to be granted.” (See People ex rel. Best v. Preston, 62 Hun, 189; affd. on appeal, 131 N. Y. 644; People ex rel. McDonald v. Lantry, 48 App. Div. 131.) Whether, therefore, we regard the Statute of Limitations as an absolute bar to proceedings of this character, or by analogy as furnishing a rule by which the court will be controlled in the exercise of its discretion whether or not a writ shall issue, the result is the same, as after a lapse of ten years, which is the period in which an action to enforce an obligation to deliver a deed can be maintained, the right to require, the delivery of such a deed by mandamus is lost.
It follows' that the order appealed from should be reversed.
Yan Brunt, P. J., concurred.
Order affirmed, with ten dollars costs and disbursements.