VAN ALEN a. FELTZ

VAM ALEN a. FELTZ. Supreme Court, Third District; General Term, May, 1859. Limitation of Actions,—Cause of Action. Under section 73 of the Code, excepting from the provision requiring a new promise to be in writing, eases “ where the right of action had already accrued the new promise, not the original contract, is to be deemed the cause of action. The conflicting cases on the construction of sections 73 and 110 reviewed. Appeal from a judgment. The cause was tried at the Columbia circuit in September, 1857, before Justice Deadatus Wright, without a jury, who, after consideration, gave judgment for the defendant, from which judgment this appeal was taken by the plaintiff. The question arose upon the statute of limitations.. The Messrs. Bnlldey (attorneys and counsellors at law), on the 18th of April, 1846, recovered a judgment against the defendant before a justice of the peace igr $101.15, and also another judgment for $76.15; and on the Slst day of March, 1856, assigned them to the plaintiff in this action, who commenced this suit for the recovery of the amount due thereon, on the 10th day of July, 1856. Before the assignment to the plaintiff, and before the statute of limitations had run against the judgments, and in June, 1852, and also before that time, the defendant verbally promised the plaintiffs in the judgments, who were then the owners thereof, to pay them; and the question was whether a verbal promise was sufficient to take the case out of the statute of limitations. Geo. W. Bulkley, for the appellant. Clark B. Cochran, for the respondent. Delavan a. Florence (N. Y. Common Pleas; Special Term, April, 1858).—This case came up on a motion for leave to issue execution. Brady, J.—The plaintiff obtained a judgment in the Marine Court on the 27th day of January, 1849, and on the 23d of May, 1857, filed a transcript thereof in the office of the Clerk of the City and County of Hew York, under section 68 of the Code of Procedure. The plaintiff now asks leave of this court to issue execution upon the judgment, to which the defendants object, on the ground that the transcript not having been filed within six years from the time the judgment was rendered, the judgment had no vitality, the transcript was a nullity, and no action could be brought upon it. The Bevised Statutes (vol. ii., 2d ed., 295, § 18, subd. 2), provide that all actions upon judgments rendered in any court not being a court of record, shall be commenced within six years next after the cause of action accrued, and not after ; and the Supreme Court, in Lester a. Redmond, held that although the Marine Court was a court of record for certain purposes, it could not act as such, as between party and party, and that the statute of limitations mentioned was a good defence to an action on one of its judgments. The'Code of 1848 (§ 66), repealed that provision of the statute, supra, but provided that such repeal should not extend to actions already commenced, or to cases where the right of action had already accrued, and that the statutes then in force should be applicable to such cases, according to the subject of the action, and without regard to the form. I am not advised by the moving paper's when the action was commenced, or when the cause of action accrued, and although that fact appearing, the disposition of the objection raised would be comparatively easy, it can be disposed of without reference thereto. I think it quite clear that the plaintiff is entitled to his execution, if the cause of action accrued after the Code of 1848 was passed; because the excepting clause of the statute of limitations then enacted, applies only to causes of action which accrued prior to the time that act took effect. The 67th section of that statute provided, that the civil actions embraced in section 66 could only be commenced within the periods prescribed by title 2, of part 2, of that act, except where, in special cases, a different limitation was prescribed by statute. By chapter 3 of that title, sections 69 and 70, it is prescribed that the period for the commencement of actions other than for the recovery of real property, and upon a judgment or decree of any court of the United States, or of any State or Territory within the United States, should be within twenty years. The amended Code of 1849, passed on the 11th of April, 1849, after the transcript had been filed in this case in the office of the clerk of the county, repealed all the provisions of the Bevised Statutes entitled “ Of actions and times of commencing them" (§ 73), excepting, however, as before in the Code of 1848, from the effect of such repeal, actions already commenced and cases where the right of action had already accrued. Ho change was made, and no change has since been made, of the period, however, in which an action on a judgment must be commenced. The provisions as to such period were made, by the Code of 1848 (§ 57), applicable to justices' courts, and also by the Code of 1849 (§ 64, subd. 15). Although by the former section, 64, it was provided that no action should be commenced on a judgment rendered by a justice of the peace within two years after its rendition, and by the latter (§ 71), not in the same county within five years after its rendition. It will have been observed that the cause of action in this case on the judgment of the Marine Court, had not accrued at the time the act of 1848 was passed, such judgment having been obtained on the 12th January, 1849, and that by that act an action on a judgment not in existence when it was passed should, by its provisions already pointed out, be commenced within twenty years. The only cause of action, in this case, that could be affected by the act of 1848, was that upon which judgment was obtained, and upon which the action must have been commenced within the time limited by the Eevised Statutes. The act of 1849 had a similar effect only, and could have no application to actions on judgments then in existence, and perfected after the passage of the act of 1848, because the period then limited for the commencement of actions thereon was twenty years, the excepting clause providing, in express terms, that ‘‘ the statutes now in force shall be applicable to the subject of the action, and without regard to form.” For these reasons, I think the motion of the plaintiff should be granted, but without costs, the question not being free from difficulty. Ordered accordingly. [MAJORITY — By the Court.—Hogeboom, J.] By the Court.—Hogeboom, J. By section 110 of the Code, as read in connection with section,73, it is provided that no acknowledgment or promise shall be sufficient evidence of a new or continuing .contract, whereby to take a case out of the operation of the statute of limitations, unless the same be contained in some writing signed by the party to be charged thereby ; but that this provision shall not extend to actions commenced, or to cases where the right of action had accrued when the Code took effect (1848); but that the statutes then in force should be applicable to such cases, according to the subject of the action, and without regard to the form. The excepted cases would seem to be pretty clearly specified by this language—and yet it was not long before a case arose calling for judicial construction—and it arose upon the proper interpretation to be put upon the following language, “ cases where the right of action had already accruedcases where the statute of limitations had already attached, were in one sense cases where the right of action had already—that is, therefore, accrued. But no difficulty arose as to these, because they were put at rest (unless there was some new promise or acknowledgment), both by the old and the new statutes. But the difficulty arose as to cases : 1. When at the time the Code took effect, the statute of limitations had attached, but there was an acknowledgment or promise after-wards ; and 2. When at the time the Code took effect the limitation had not yet attached, but would have attached before the action was commenced, but for an intervening promise or acknowledgment. The question was, whether, in these two latter cases, the promise or acknowledgment must be in writing ; that is, whether the Code operated upon it, or it did not. As to the first class above mentioned, the cases of Wadsworth a. Thomas (7 Barb., 445), and Esselstyn a. Weeks (2 Kern., 635), are directly applicable, and they hold that in such cases the rule-of the Code governs, and that the promise or acknowledgment must be in writing. They are put upon the ground, that when the Code took effect, the statute had already attached, and that in no just sense could it be said of them that the causes of action had already accrued; that the effective cause of action, and that upon which the plaintiff must rely for a recovery, was the subsequent promise or acknowledgment; and hence, that such cases did not, according to the spirit, and scarcely according to the letter of the statute, come within the exception before named. But in the other class of cases, where the statute of limitations had not attached, and of course where there was an existing cause of action at the time the Code took effect, there is more difficulty. They present unquestionably cases where a right of action had already accrued, and the question is, whether it is the right of action to which the exception refers. The reasoning of the cases above referred to, comprehends this latter class of actions; for it is contended, and with much apparent reason, that the right of action referred to, means the right of action which is prosecuted, and not one, which although existing when the Code took effect, is permitted to die, or become extinguished without being enforced. And it is claimed that the Code meant to establish one uniform rule of evidence for the future ; that is, when the party in order to sustain his action was obliged to rely upon a promise or acknowledgment made since the Code, it must have one uniform characteristic, that is, it must be in writing. And I think this on the whole the sounder construction. Against this construction it is urged, with some plausibility, that the cause of action prosecuted is in all cases the original cause of action, and that the subsequent promise or acknowledgment is only used to sustain or continue the original cause of action. This view is supported by several adjudged cases. But after all we cannot but see that it is the new promise or acknowledgment which gives vitality to the cause of action, -without which it could not exist—and that it forms the substance of the right of action prosecuted. And we ought, therefore, I think, for the purpose of giving a construction to this section, to look at the object and spirit of the enactment, and not to the mere letter of it. It may be technically true that the right of action had accrued when the Code took effect. But the meaning of the Code is, I think, to except from the operation of the section requiring the new promise or acknowledgment to be in writing, only those cases where an action had been already commenced, or should be thereafter commenced, upon a then existing and effective cause of action, which should of itself, and without the aid of any subsequent promise or acknowledgment, be sufficient to support the action. I am embarrassed, however, in giving effect to these views in the present case, by the course of adjudication which has been had in this court on the effect of this statute. The decision of the Court of Appeals in Esselstyn a. Weeks cannot be regarded as controlling authority beyond the range of the facts involved in that case, and that was a case where the statute of limitations had attached prior to the Code. On the other hand there are several decisions in this court to the effect, that where a right of action had already accrued at the time the Code took effect, a subsequent promise or acknowledgment to renew or continue the same need not be in writing. (Gillespie a. Rosekraatz, 20 Barb., 35 ; Glen Cove Mutual Insurance Company a. Harrold, 20 Ib., 298 ; Winchell a. Bowman, 21 Ib., 448.) The cases also in this court are numerous to the effect, that where a demand is barred by the statute of limitations, and revived by a new promise or acknowledgment, the right of action is founded upon the original demand, and not upon the new promise or acknowledgment, the latter operating only to remove the presumption of payment arising from the lapse of time. (Soulden a. Van Rensselaer, 9 Wend., 297 ; McCrea a. Purwort, 16 Ib., 477 ; Watkins a. Stevens, 4 Barb., 168 ; Carshore a. Huyck, 6 Ib., 583 ; Philips a. Peters, 21 Ib., 358, and cases there cited ; Winchell a. Bowman, 21 Barb., 451.) If this be so, it can be argued with great force, not only that in a case like this, the right of action had accrued when the Code took effect, but was continued and remained a subsisting cause of action at the time this action was commenced, and that the only effect of the subsequent promise or acknowledgment was to awake the original cause of action theretofore dormant, but not dead. I have expressed my doubts whether this was the true interpretation of the provisions of the Code already referred to, but should be inclined on the whole to yield to the weight of authority, and to leave it to the Court of Appeals, if they think proper to overrule the construction which this court seems pretty uniformly to have put upon this statute, were I not satisfied from the opinion of this court in Wadsworth a. Thomas (7 Barb., 445), that there is a difference of opinion in this court on the subject, and from the opinions of the Court of Appeals in Esselstyn a. Weeks (2 Kern., 635), that they would ultimately -adopt the view of the statute therein expressed as the authoritative exposition of the law. As this also accords with our own construction of the statute, independent of authority, and will probably save expense to the parties, we think the appropriate disposition to be made of this case is, that the judgment therein should be affirmed. Sutherland, J., and Gould, J., concurred. Present, Gould, Sutherland, and Hoqeboom, JJ.