This is an appeal from the judgment of the court of common pleas of the city and county of New-York, upon a case agreed upon between the parties on the second day of March, 1850, containing the facts upon which the controversy depends, pursuant to §§ 372, 373, 374, of the Code of Procedure.
The facts are, that Colin Mitchell, the intestate, on the 2d day of April, 1836, made his promissory note payable to the order of T. Vermilya, for $929,56, ten months after date; of which Christophers is the indorsee and owner. On the 7th or 8th day of February, 1837, Mitchell left New-York, for Florida, where he remained until the last of July, or the first of August, 1837, when he sailed from Apalachicola in a vessel bound for New-York, after which the vessel was never heard of, nor Mitchell, and it is supposed that he perished at sea in the said month of August. Letters of administration upon his estate were issued by the surrogate of New-York to Garr, on the 27th day of June, 1844. On the 8th day of April, 1837, Mitchell wrote and transmitted by mail to Vermilya a letter, in which *Page 62 he alluded to a note of his to Vermilya, due the second day of that month, expressing some concern on account of his inability to pay it.
The single question submitted by the parties for the determination of the court below was, whether the plaintiff's cause of action upon the note in question, was or not barred by the statute of limitations. That court held that it was not.
The note became payable, including the days of grace, on the fifth day of February, 1837, and Mitchell being then a resident of New-York, the statute began to run.
This is one of the actions which the statute (2 R.S. 295, § 18,) provides, as a general rule, shall be commenced within six years next after the cause of such action accrued, and not after. To this rule there are several exceptions made by §§ 24, 25, 26, 27 and 28, of the same statute. The last clause of § 27 provides, that, if after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.
As Mitchell was within the state at and after the time when the action accrued on the note, the running of the statute against the action commenced, at that time; his departure from the state and his residence out of it, operated as a suspension during his absence; but that terminated with his death. When the statute begins to run, it is a general rule that no subsequent disability stops it; the death of the party is not an exception. (Wenman v. Mohawk Ins. Co., 13 Wend. 267, and the cases therecited.)
At the death of Mitchell, the statute had not yet run, and therefore, 2 R.S. 448, § 8, applies, to extend the statute eighteen months after his death, in addition to such part of the six years as remained unexpired at that time; which carried the period of limitation to February, in the year 1845. The action not being brought until March, 1850, it came too late by more than five years. It might have been brought immediately *Page 63 after letters of administration were granted in June, 1844. If the delay works a loss to the plaintiff, it is chargeable to his own neglect, in not taking care to commence his suit in time to have avoided it.
The case of Benjamin v. DeGroot, (1 Denio, 151,) is supposed by the plaintiff's counsel to be an authority to sustain this suit; but it may be seen that that case presents a distinction which is not to be found in this, namely, that there the statute had not begun to run against the debtor during his lifetime.
I am of opinion that the action was barred by the statute at the time it was commenced, and that the judgment of the court below is consequently erroneous and should be reversed.