By section 1 of chapter 572 of the Laws of 1886 the time within which this action must have been commenced was one year after the cause of action accrued, and the cause of action accrued upon the appointment of Mary Sim, widow of the decedent, as his administratrix on June 13,1906.
Under the express provisions of the statute the administratrix had one year after her appointment to commence an action, and unless that time was extended by some other provision of law the cause of action, not having been commenced within one year after it accrued, the Statute of Limitations had run. Tlie Court of Appeals have held in Matter of Meekin v. B. H. R. R. Co. (164 N. Y. 145) that the injury is for a wrong done to the property, rights or interests of the decedent’s next of kin and, therefore, the cause of action survives the death of the administratrix who commenced the action. And that court also held in McKnight v. City of New York (186 N. Y. 35) that the effect of the one-year limitation prescribed by the act of 1886 was to amend by implication section 383 of the Code of Civil Procedure by reducing the period of limitation in actions for personal injuries due to negligence against a city having a population of 50,000 inhabitants or over from three years to one, and that the limitation prescribed was, therefore, subject,to suspension during the existence of any of the disabilities specified in section 396 of the Code of Civil Procedure. Thus, if Mary Sim had as administratrix commenced an action within the year, the *454fact of her subsequent death would not abate the action, but it should be continued not by her personal representative, hut by a new administratrix of the estate of the decedent whose death gave rise to the cause of action. Hone of the disabilities mentioned in section 396 of the Code of Civil Procedure existed, and, therefore, the time within which the action must be brought was not suspended by reason of the provisions of this section. The plaintiff, however, claims that this case comes within section 402 of the Code of Civil Procedure, and that claim is upheld by a majority of the court. . The prevailing opinion, however, admits that the plaintiff does not come within the literal wording of that section, and it seems to me that he does not come within the spirit or intent of the section. It is there provided that “ if a person entitled to maintain an action ‘ dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative after the expiration of that time and within one year after his death.” The object of this provision is clearly to provide a time for the appointment of a personal representative of a deceased person who had a right to maintain an action,' so that in a case where the statute had not run at the time of the death of a person entitled to maintain an action it could be brought by his personal representative. The section does, not in express, terms extend the time within which an action may be brought, but provides that in case of. the death of a person entitled to maintain an action it may be brought by the personal representative of the deceased within one year after his death. By its terms it only applies to a cause of action which had vested in the personal representative of the deceased person to whom the right cause of action belonged. As before stated, this provision of section 402 of the Code of Civil Procedure only allows the representative of a deceased person to commence an action within one year after the death of the person entitled to maintain it. Mary Sim, the deceased, was authorized to commence the action in a representative capacity as the administratrix of the person whose death gave rise to the cause of action, and for the benefit of the widow and next of kin of the decedent. Her personal representatives have not sought to avail, themselves of the provisions of this statute to commence the action. There is. nothing in the statute which authorizes the action to be *455brought after a period of one year from the timé the cause of action accrued by a substituted administrator. The administrator of the estate of Thomas H. Sim seeks to maintain this action commenced more than one year after the cause of action accrued under the provision of a section of the Code .which authorizes an action to be commenced after that time by the personal representative of' Mary Sim.
It seems to me that this section' is not at all applicable, and I
think the judgmént should be affirmed.
\
Dowling, J., concurred.
Exceptions sustained and new trial ordered, with costs to plaintiff to abide event. Settle order on-notice.