This remedy was first given by chapter 450 of the Laws of 1847. That statute contained a proviso that the “ action should be commenced within two years after the death of such deceased person.”
In 1849 (oh. 256) the act was amended by limiting the amount of the recovery to $5,000. In 1870 (ch. 78) the legislature again amended the statute by inserting the further provision that the amount of damages recovered should draw interest from the time of the death of the deceased person, but left the proviso untouched. The appellant claims that the effect of the amendment was to restrict the proviso to the recovery of interest, so that the right to recover interest only became dependent upon the bringing of the action within two years.
I think the statute does not admit of such a construction. The proviso inserted in the original act, and continued in the amendatory statutes, was intended to have, and has, the effect of a statute of limitations, and bars the action if not brought within two years.
Judgment must be affirmed, with costs.
Dykman, J., concurred; Barnard, P. J., not sitting.Judgment affirmed, with costs.