(dissenting).. Whether section 28 of the Civil Practice Act modifies section 27 immediately preceding, so as to comprise a period when the country is at war, is the question involved in this appeal. Section 27 provides that “ Where a person is disabled to sue in the courts of the State by reason of either party being an *395alien subject or citizen of a country at war with the United States, the time of the continuance of the disability is not a part of the time limited for the commencement of the action.” Section 28 provides: “A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued.” This question was raised at Special Term by a motion under rule 107, subdivision 6, of the Rules of Civil Practice to dismiss the complaint upon the ground that the cause of action did not accrue within six years before the commencement of action. From an order denying the motion to dismiss the complaint this appeal is taken.
In the case at bar the plaintiff’s right of action accrued about a month before the commencement of the war between the United States and Germany. The war between this country and Germany lasted from April 6,1917, to July 2,1921 (40 U. S. Stat. at Large, 1, chap. 1; 41 id. 1359, chap. 136; 42 id. 105, chap. 40) and as plaintiff’s assignors were citizens of Germany, they were barred from bringing or prosecuting any action in our courts during that time. The authorities hold that section 28 of the Civil Practice Act comprises certain enumerated disabilities, such as infancy, insanity, imprisonment and coverture. Does it also comprise a suspension of the right to sue during the continuance of a state of war? To this qucere the answer is a negative. Section 27 of the Civil Practice Act- relates, as indicated in its headnote, not to a common-law disability but to the effect of war on the rights of an alien to bring an action in the courts of this country. Said section 27 is as foreign to a common-law disability as is section 24, relating to the effect of a stay of an action by injunction. In both cases there is a suspension of the right to sue. The disabilities concerned in section 28 are not those relating to war and an injunction, which are separately and expressly provided for, but are the disabilities well known to the common law, such as infancy, coverture, insanity and imprisonment. In none of these cases is the right to sue suspended for a moment, but because of these the Statute of Limitations is extended for various additional periods, depending upon whether or not the disability existed at the time the right of action or of entry accrued. Neither war nor the issuance of an injunction are strictly disabilities at all, as this term is used to express infancy, coverture, insanity and imprisonment, as shown both by examining the source of both sections 27 and 28 and also by a consideration of the result which would be arrived at by so holding. Taking up the source of such sections 27 and 28, we find that both sections are mediate re-enactments of provisions of the Revised Statutes (Pt. 3, chap. 4; 2 R. S. 291 et seq.), which took effect on January 1, 1830. (See 2 R. S. 778, § 8; Laws of 1828 *396[2d Meeting], chap. 20, §§ 3, 8.) Articles 1st and 2d of title 2 of this act provide certain limitations of time for commencement of actions relating to real and personal property. In both articles are exceptions from the operation of the statute in the case of certain enumerated disabilities, such as infancy, insanity, imprisonment and coverture. Article 4th is entitled: “ General provisions concerning the commencement of suits, and the persons and cases excepted from the operation of the preceding articles of this title.” (Italics not in original.) This heading, if there was nothing else, plainly shows that its provisions cover cases not covered in the preceding articles. One of these cases is that of war. Section 32 of article 4th (now Civ. Prac. Act, § 27) reads as follows: “ Whenever any person shall be disabled to prosecute in the courts of this State, by reason of his being an alien subject or citizen, of any country at war with the United States, the time of the continuance of such war, shall not be deemed any part of the respective periods limited in the first and second articles of this title, for the making of any entry, or the commencement of any action.” Nor is this construction militated against by section 41 of said article, which follows. Said section 41 of said article 4th (now Civ. Prac. Act, § 28) reads: “ No person shall avail himself of any disability enumerated in this Title, unless such disability existed at the time his right of action, or of entry, accrued.” It is to be noted that the latter section is by its express terms limited to certain disabilities enumerated in the title. There are to be found in said title certain disabilities expressly set forth and each given a particular number. These enumerated disabilities do not include the case of a person prevented from prosecuting an action because of war. Such a case, therefore, is not within the terms of section 41. The fact that in the Civil Practice Act all sections dealing with limitations of actions are placed under the same article 2 does not change the above conclusion. It is well settled that by such grouping or condensation, the constituent parts of the statute do not lose their previous construction, even though a different construction may be suggested by their new position. As was said by Mr. Justice Bradley in McDonald v. Hovey (110 U. S. 619, 628): “ It is a received canon of construction, acquiesced in by this court: ‘ That where English statutes, such, for instance, as the Statute of Frauds and the Statute of Limitations, have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority.’ Pennock v. Dialogue, 2 Pet. 1, 18; Smith’s Commentaries on Stat. and Const. Law, § 634; Sedgwick on Construction of Stat. and *397Const. Law, 363.” And again, quoting from Matter of Murphy (3 Zab. [27 N. J. Law], 180), Mr. Justice Bradley said: “ Where two or more statutes, whose construction has been long settled, are consolidated into one, without any change of phraseology, the same construction ought to be put Upon the consolidated act as was given to the original statutes. A different construction ought not to be adopted if thereby the policy of the act is subverted or its material provisions defeated.”
Our own Court of Appeals has applied this rule of construction in passing upon the effect of the very sections of the Civil Practice Act here involved, arising, however, in the case of an enumerated disability. In Scallon v. Manhattan R. Co. (185 N. Y. 359, 366) Judge Vann said: “ We think the provision as now found in the Code of Civil Procedure' has the same effect, so far as supervening disability is concerned, as when it stood in the Code of Procedure or the Revised Statutes. While verbal changes have been made and the language simplified, the substance has not been changed.” It thus appears that by the express provisions of the statute the running of the Statute of Limitations was suspended during the continuance of the war. We next take up the result reached.
If, by a confusion of things different under the same term of disabilities, we are led to hold that section 28 applies to both, we then reach a result where we have actually cut down the period of limitation in the case of war or an injunction to a single day if it should happen that the cause of action accrued one day before a state of war existed or an injunction was issued. In the case at bar, as pointed out by the learned justice at Special Term (Nathan v. Equitable Trust Co., 129 Misc. 464), if the war had lasted for six years instead of four, the statutory period of limitation for the plaintiff’s assignors would have been less than a month. We have reached the above conclusion without considering whether the language used in paragraph 11th of the complaint can fairly be said to allege a part payment. If this may be so construed, of course the statute would start running anew. (First Nat. Bank of Utica v. Ballou, 49 N. Y. 155.)
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
McAvoy, J., concurs.
Order reversed, with ten dollars costs and disbursements, arid motion granted, with ten dollars costs.