Evans v. CleveLand

Merwin, J.:

The only point is whether the defendant can avail himself of the one-year statute of limitations, by reason of the fact that more than one year elapsed after the appointment of the plaintiff as executrix, and before her motion for leave to file a supplemental complaint. The act of the defendant complained of was within the statute (chap. 733 of 1871, § 2), and I see no reason why this statute should not be interpreted the same as any other statute of limitations.

It was held in this department, in Beach v. Reynolds (64 Barb., 506, 521), and affirmed in Court of Appeals, in same case (53 N. Y., 1), that the statute of limitations was a good plea to a bill of revivor, and that was declared to be the settled law and a fiat bar to proceedings to revive. That was an appeal from an order, ordering the suit to be revived and continued on a supplemental complaint, on the ground the court had no discretion to deny it. That order was reversed and motion to revive denied.

If it is true that the statute is a flat bar to proceedings to revive, then, as the facts of the case are not disputed, there ought to be some way in which the defendant can get the benefit of his clear right. ^

As far as the applicant is concerned, the order to revive is discretionary, but, query, whether the court, in Beach v. Reynolds, meant to hold that the rights of a defendant in such a case could be cut off by the exercise of the discretionary power of the court. If the statute to defendant was a flat bar, there was no discretion about it; the order, if it assumed to pass upon it, necessarily involved the merits, and would be reviewable on appeal from the judgment.

In Arthur v. Griswold (60 N. Y., 143) it was held that the objection that the cause of action did not survive could be raised, and be available at the trial, notwithstanding an order at Special Term reviving the action.

If that objection, why not any other, going to the right to revive ? (See Robbins v. Wells, 26 How., 15.)

In the present case, the order at Special Term does not assume to pass upon the right to revive. It merely gives leave to file and serve a supplemental complaint, for the purpose of reviving and continuing the action. Such complaint, when served, alleges the facts on which plaintiff claims the right to revive, and prays for a revivor. The answer puts these at issue, and sets up an affirmative defense to the revivor, being the statute. One of the issues, therefore, by the pleadings, as voluntarily made by both parties, is whether there shall be a revivor. Upon such issue, with others, the parties go to trial. It is too late then for the plaintiff to say that the issue of revivor was disposed of by a discretionary order at Special Term. The defendant has acted upon the supplemental complaint, which presented to him that issue to answer.

I think, therefore, the issue of revivor should have been passed upon at Circuit. The facts were conceded, and within the rule in Beach v. Reynolds, the defense of defendant to the bill to revive was fully made out, and he was entitled to a nonsuit.

The judgment should be reversed and new trial ordered, costs to ah'de event.

Present — Talcott, P. J., Sv.tth and Merwin, JJ.

Judgment reversed and zuw 'rial ordered, costs to abide event.