I am unable to agree with the result reached by Presiding Justice Kruse in his opinion in this case. The primary fact is the assessment of the tax and the subsequent proceedings which made it a lien. The lien was a charge or incumbrance upon the land in favor of the municipality. The land should bear its proportionate share of the expenses of government and the lien represents the equitable share of governmental expenses which the land should pay. The statute which pointed out the procedure for fastening upon the land the lien or liability to pay, when complied with, *582established the primary obligation or lien. It also limited the right of the municipality to take proceedings to enforce that right or lien to a period of ten years. The limitation was not a grant of a right. It was a limitation upon the municipality, restricting its right to enforce its lien. When the statute was passed withdrawing that limitation, the lien was still in existence. It did not deprive the land of any right. It simply removed the restriction upon the municipality. It was not retroactive in the sense that it placed a burden upon the land that did not exist when it was enacted. It simply extended the right of the municipality to enforce the lien which it already, had. It affected the remedy only and looked to the future.
I am unable to distinguish this case from the case of Hopkins v. Lincoln Trust Co. (233 N. Y. 213). The Court of Appeals reversed this court in that case. (199 App. Div. 909.) The plaintiff sued at law to recover damages for fraud, which cause of action accrued in August, 1912. At that time there was a six-year Statute of Limitations and the remedy was barred in August, 1918. Two years later the statute was amended so that in actions for fraud the cause of action was deemed to accrue upon the discovery of the fraud. (See Code Civ. Proc. § 382, subd. 5, as amd. by Laws of 1920, chap. 480; now Civ. Prac. Act, § 48, subd. 5, as amd. by Laws of 1921, chap. 199.) The plaintiff began the action in 1920 and alleged that he did not discover the fraud until 1919. The trial court held that the amendment affected the remedy and that the action was brought in time. This court affirmed and the Court of Appeals reversed, holding that the amendment did not revive causes of action which had expired and which were extinguished. However, Judge Cardozo, in his opinion, said: “In thus holding, we do not deny its application to rights accrued, but not extinguished. [Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 270.] The period of limitation, though it has begun to run, will be extended. The exception is confined to cases where the period has expired.”
In the case at bar the period of limitation had begun to run but it had not expired.
Sears, J., concurs.
Judgment modified by adding the village tax of 1902 to those declared by the judgment to be valid liens against the premises, but payable last in the order of priority, and as so modified the judgment is affirmed, without costs of this appeal to either party.