(dissenting). The question' involved on this appeal is the interpretation of section 47-a of the Civil Practice Act, effective on September 1,1938, and providing that an action upon a bond, the payment of which is secured by a mortgage upon real property, must be commenced within six years after the cause of action has accrued. The contention of the defendant which was sustained below was that an action on the bond was barred on September 1,1944, or six years from September 1,1938, when section 47-a became effective. The action herein was not commenced until January 11, 1946. The appellant seeks to avoid the statute by contending that it does not apply because its mortgage, which was given to secure the bond upon which this action is predicated, was extinguished' by a superior mortgage lienor in a foreclosure action in 1935. The appellant contends in effect that the. action is not one upon a bond, the payment of which is secured by a mortgage on real property, because the mortgage which secured the bond had been extinguished when section 47-a became effective.
*249The case of Kirschner v. Cohn (270 App. Div. 126), while not controlling, is suggestive. In that case, it is true, the mortgage was extinguished after the effective date of section 47-a. Ii the statute is to be read as referring to “an action upon a bond, the payment of which is secured at the date of enactment of this statute by a mortgage on real property ”, then the Kirschner case (supra) may be distinguished from the present case. However, I do not believe that such is the fair intendment of the statute. It appears to me rather to refer to actions on a certain class of bonds, i.e., those given in connection with a mortgage. If subsequent events rather than the original transaction are to be determinative, it might even be argued that foreclosure of a mortgage after the effective date of the statute would operate to change the period of limitations. The Kirschner case rejects such an argument and to my mind implies as an alternative not that the date of enactment is significant, but that the statute embraces actions on bonds which at their inception are secured by mortgages.
The cases cited by appellant, which deal with the emergency legislation of the 1930’s, seem to me to be neither controlling nor persuasive. That legislation was directed specifically to the mortgagor-mortgagee situation. Once the" mortgage is extinguished, the case is no longer within the purview of the statute. Such decisions have little bearing on the wholly different type of legislative enactment involved in the present case. Moreover, the test in the mortgage moratorium cases is the existence or nonexistence of the mortgage at the time the action is commenced (see Meurer v. Keimel, 150 Misc. 113). The Kirschner case (supra) makes it clear that such a test does not govern the applicability of the limitations statute.
The language of section 47-a is on its face susceptible of either construction. Under the construction adopted by the lower court a uniform limiting period is applied to actions against a single class of obligors, and the limitation does not vary according to what happens to the security after the creation of the obligation. This construction is in my opinion sound and preferable.
I recommend affirmance.
Hammer, J., concurs with Hecht, J.; Shientag, J., dissents in opinion.
Judgment and order reversed.