Arthur E. Gough, Respondent, v. Henry S. McFall, as Attorney in Fact for and Representing James Corrigan and Others, Appellant

Arthur E. Gough, Respondent, v. Henry S. McFall, as Attorney in Fact for and Representing James Corrigan and Others, Appellant. Statute of Limitations—-time of commencement of an action, when the limitation of the time within which it maybe brought is fixed by the contract—judgment entered upon findings for which there was no basis— amendment. Where the limitation of time within which an action may by brought is not specifically provided for in the Code of Civil Procedure, but is contained in the contract sued upon, the plaintiff is entitled to rely upon the provisions of the common law that an action is commenced when the writ is issued and is in good faith mailed to the sheriff for the purpose of service. If the time of the commencement of an action is governed by section 398 of the Code of Civil Procedure, and is to be deemed as of the date when the summons is in fact served, as therein provided, the case is embraced within section 399 of the Code, providing that “ An attempt to commence an action in a court of record is equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff.” Where findings upon which a judgment was based were signed by the judge inadvertently, and there was no basis upon which such findings could be made, or the judgment entered, and the judgment has no support in the complaint or in any stipulation or in any proof, it is void and no claim can be predicated thereon. In such circumstances, it is competent for the court to order the judg- ■ ment to be amended to conform to the only valid decision which the court has made, and when thus amended it stands as the only judgment in the case. Appeal by tbe defendant, Henry S. McFall, as attorney in fact for and representing James Corrigan and others, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of the clerk of tbe county of Richmond on the 12th day of November, 1897, upon the decision of tbe court rendered after a trial at the Richmond Special Term; also from tbe said judgment, as amended by an order made at the Kings County Special Term and entered in the office of the clerk of tbe county of Richmond on the 20th day of January, 1898, and also from the said order. The action was brought against Henry S. McFall as tbe attorney in fact of certain parties transacting business under tbe name of the Niagara Fire and Marine Underwriters of Buffalo, New York, to recover a loss by fire occasioned to property insured by that Lloyds association. The policy provided among other things, as stated in the answer, that “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” The fire occurred on April 6,1896. The summons and complaint were delivered for service to the sheriff of Erie county, where the defendant resides, on April 1,1897, but were not actually served until after April 6, 1897. Alfred W. Gray \_George Clinton with him on the brief], for the appellant. Arthur S Luria, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: This case, aside from the power of the court to amend the judgment first entered, presents hut a single question, and that is : Did the delivery of the summons and complaint in the action to the sheriff of the county where the defendant resided, for service, before the Statute of Limitations had run against the cause of action sued upon, save such action from the bar of the statute, although sucli summons and complaint were not served upon the defendant until after the time when the statute would have run? The plaintiff answers this question in the affirmative, and the defendant in the negative. The plaintiff supports his claim by-reference to section 399 of the Code of Civil Procedure, which provides that “An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant within the meaning of each provision of this act, which limits the time for commencing an ’ action, when -the summons is delivered, with the intent that it shall be actually served, to the sheriff. * * * But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant.” It is stipulated that the summons and complaint in the present case were delivered to the sheriff for service before the statute had run, and that they were served upon the defendant within sixty days thereafter. The. defendant answers this claim by the assertion that the language of the section, “ within the meaning of each provision of this act, which limits the time for commencing an action,” refers to provisions of the Code fixing the time within which actions may be commenced, and does not apply in a case where the limitation is not one specifically provided for in the Code; that the 'limitation in the present case is contained in the contract, and, therefore, the specific language of the Code provision ■ excludes a limitation embraced therein. The defendant is enabled to support his claim to this construction by substantial authority. (Quinn v. Royal Ins. Co., 81 Hun, 207.) The decision of this case was made to rest upon the authority of Hill v. The Supervisors (119 N. Y. 344). That was an action to recover damages sustained in consequence of a mob or riot, and was brought under a statute which required that the action should be commenced within three months, as limited in the act. The plaintiff, having brought his action, was nonsuited, and, in a new action, sought to avail himself of the provisions of section 405 of the Code of Civil Procedure, which extended the limitation in certain cases. It was held that such action did not fall within the provision, for the reason that the right of action was created by the statute, and plaintiff’s rights were measured by its terms. It is to be observed that in that case the plaintiff was compelled to resort to the Code provision for relief, as it could not be sought elsewhere. When this failed he had no other resort, as all of his rights depended upon the terms of the statute. There is evidently a plain distinction between such case and the one we are now considering. The plaintiff’s right of action in this case depends upon his contract, and in the absence of Code provisions the remedy which he would be entitled to invoke would be such as is furnished by the common law. Ho such resort could he had in the Hill case, as the plaintiff’s rights therein were limited solely to the statute which gave the right of action. If, in the present case, the commencement of the action is governed by section 398 of the Code of Civil Procedure, and the time of the commencement of the action is to be deemed as of the date when the summons is, in fact, served upon him, as provided in that section, then we see no reason why the other provisions of the Code do not apply, and why the language of section 399 of the Code does not embrace such a case within the reasoning of the decisions in Hayden v. Pierce (144 N. Y. 512) and Titus v. Poole (145 id. 414). If, however, we adopt the defendant’s contention and hold that this case is embraced within the exception contained in section 414 of the Code of Civil Procedure, and is, therefore, outside of any Code provision having reference to the limitation of actions, the provision respecting the time of the commencement of the action has no application, and, as in such case, there is no provision of the Code governing the remedy, and as plaintiff’s right of action is dependent upon contract, the plaintiff is relegated to his rights and remedies as existing at common law. In such case the rule of the common law is well settled. Actions under it are deemed to be commenced when the writ is issued, and it is, in good faith, mailed to the sheriff for the purpose of service. Such act saves the bar of the Statute of Limitations. (Burdick v. Green, 18 Johns. 14; Visscher v. Gansevoort, Id. 496; Lowry v. Lawrence, 1 Caines, 69 ; Jackson v. Brooks, 14 Wend. 649.) There is nothing in Quinn v. Royal Ins. Co. (supra) in conflict with this view. The court in that case did not consider or express any opinion respecting the plaintiff’s rights at common law; it is not, therefore, an authority upon this point. Into one or the other. of these contingencies it would seem the defendant must fall, and whichever rule we adopt seems equally fatal to the defendant’s contention. So far as the appeal from the order is concerned, the facts are undisputed. The court made its decision before the formal findings were signed. This decision contained all that was essential upon which the plaintiff could have entered judgment. It was attached to the stipulation of the parties which set out the only issue and questions in the case. The issue the court disposed of and directed judgment in favor of the plaintiff, with costs. This was all that was necessary to entitle the plaintiff to the only judgment to which he was entitled. [Reynolds v. Ætna Life Ins. Co., 6 App. Div. 254.) The defendant claims that the first judgment was void, and in this claim we agree. The findings upon which it was based were signed by the judge inadvertently and were equally void. There was no basis upon which such findings could be made or the judgment entered. It had no support in the complaint or in the stipulation or any proof, and as the whole was void, no claim could be predicated thereon. It was, therefore, competent for the court to order the judgment amended to conform to the only valid decision which the court had made, and when amended it stood as the only judgment in the case, and was authorized by the original decision. It follows that the judgment and order should be affirmed, with costs. All concurred, except Babtlett, J., absent. Judgment and order affirmed, with costs.