#### Clemens Muller, Respondent, *v.*The Manhattan Railway Company and Interborough Rapid Transit Company, Appellants.

First Department,

February 21, 1908.

Limitation of actions to recover real property — acquisition of easement by adverse user — effect of infancy of invested. remaindermen — right of infant remaindermen to sue during life tenancy — section 375, Code Civil Procedure, construed — rule for computing period of disability caused by infancy — rights of grantee of infant remaindermen.

Adverse possession commencing in the lifetime of the ancestor continues to run against the heir although'he "is an infant when his right accrues.

By virtue of the statutes (1 B. S. 750, § 8, and Code Civ. Proc. § 1665), infants seized of an estate in remainder or reversion may maintain an action by a guardian *ad litem,*for waste or trespass causing injury to the inheritance, BOtwithstanding the existence of an intervening life estate,

*296In determining whether the limitation (Code Civ. Proc. § 375) has run against an action to recover real property which accrued during infancy, the' rule is : Take the date of the coming of age of the infant as the starting point; to that date add twenty years and from that ascertained date look • back to the daté when the cause of action accrued,'and if said date was within the period of disability and not more than ten years prior to 'the infant’s coming of age and the suit is brought within twenty years after the coming of age, the action is hot barred.

Hence, when a. cause of action against an elevated railroad for appropriating easements in light and air accrued to an infant remainderman on December 30, 1878, while the life tenitnt was in possession and the remainderman became of age August 20, 1881, and her successor in title brought action February 21, 1899, the action is not barred, for only seven weeks had elapsed after the expiration of twenty years which was within the ten years allowed by the aforesaid method of computation.

One purchasing the interest of an infant remainderman on a partition sale acquires the rights of the grantor in respect to an action to enjoin an injury to easements in light, air and access by the erection of an elevated railroad.

Lattg-hlhí, J., concurring in result, dissented, with opinion, as to the method of computing the limitation under section 375 of the Code of Civil Procedure in cases of infancy.

Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of New York on" the 6tli day of March, 1907, upon the decision of the court, rendered after "a-trial at the New York Special Term, granting an injunction alternative upon the payment of the damages caused by the defendants’ elevated railroad to plaintiff’s premises, Ro. 849 Third avenue.

*Theodore I. Waugh*of counsel *[Charles A. Gardiner,*attorney], for the appellants.

TP". *G.*Peclcham, for the respondent.

Clakke, J.:

This action was commenced on the 21st day of February, 1899. The operation of the road opposite the premises 'in question was begun on the 3'0th day of December, 1878. Plaintiff acquired title on June 8,1891, by a referee’s deed in an action in partition entitled “ Joseph Dang against Caroline Andre and others.” In April, 1868, John Lang acquired title to the premises in suit, and died January *29730, 1875, leaving a will by which he devised the premises to liis widow, to be used and enjoyed by her "during the term of her natural life or widowhood, and from and immediately after her decease or after her marrying again he bequeathed and devised said premises to his children or their descendants, to be equally divided between them share and share alike, tlie descendants of any deceased child or children taking the share of such deceased child or children, if living. . He left surviving him his widow and six children, all infants. The widow married one Andre on June 27, 1888. The dates of the births of said infant children were as follows: Fredericka, August 20,1860 ; Caroline, July 17, 1864; Joseph Gf., June 30,1866 ; Charles, September 14,1868; William, October 18,1870; John, December, 1874; said Charles died in 1897, William.in 1901, and John in 1875.

When the caiise of action accrued on December 30, 1878, title was in the widow as life "tenant, and the children as remaindermen.

The causé of action accrued on December 30,1878, and the action having "been commenced on the 21st day of February, 1899, more than twenty years had elapsed. *Hindley*v. *Manhattan R. Co.*(185 N. Y. 335) held that where it"' appears that the railroad companies acting under legislative and municipal grants giving them actual authority to erect, maintain and operate an elevated railroad in the street upon which the plaintiff- was an abutting owner,, and apparent authority to appropriate the easements of abutting owners to the extent that such a structure and the use thereof necessarily involve, entered such a street and, without leave or license from the plaintiff, took open, hostile and absolute possession of his easements of light, air and access by building a huge and permanent structure of" iron in the street ■ in front of his premises, which has been exclusively and continuously maintained and used by the companies for the purposes of an elevated railroad for a period" of more than twenty years, the companies have acquired by prescription an absolute title to such easements which constitutes a complete bar to the recovery and relief demanded by the plaintiff.

■ In *Scallon*v. *Manhattan Railway Go.*(185 27. Y. 359.) it was held that adverse possession- and prescription, being closely related, the former-regulated by statute-and the latter by common law, the effect of infancy upon title by prescription is analogous to that *298upon title by adverse possession under the Statute of Limitations. If infancy exists .when a cause of action first accrues, the time for commencing the action is extended for a certain period after the infant becomes of age. If, on the other hand, the statute has begun to run against the ancestor, it is not interrupted by his death and the supervening disability of his heirs. So that an adverse possession commencing in the lifetime of the ancestor will continue to run against the heir, although he is an infant when- his right accrues.

On the 30th of December, 1878, the five surviving children of John Lang were infants, and were vested with the remainder in fee of this property under'the will of their father, subject to the estate of their mother for life or while unmarried. At that timé a cause of action sprang into being to the children for. the injury done to ■ their remainder in fee. *“*A person seised of an estate in remainder or reversion may maintain an action of waste or trespass for any injury done to the inheritance, notwithstanding any intervening estate for life or years.” (1 B. S. 750, § 8.) “A person seized of an estate in remainder or reversion may maintain an action founded upon an injury doné to the inheritance, notwithstanding any intervening estate,for life or for years:” (Code Civ. Proc. § 1665.) So that notwithstanding the intervening life estate- of' their mother, and in no way dependent thereon, an action could have been brought and maintained by the children *(Thompson*v. *M. R. Co.,*130 N. Y. 360); and such an action could have been brought during their infancy by a guardian *ad litem.*(*Walsh*v. *Brooklyn Union El. R. R. Co., No. 2,*69 App. Div. 389.)

As entry did not take pláce during the life of their ancestor, that is, their father, from whom they took title by will, the adverse possession did not begin to run during his lifetime. The oldest of the children, Fredericka, having been born August 20, 1860, was a little over eighteen' years of age when the cause of action accrued. Section 375 of the Code of Civil Procedure provides, that: “ If a person who might maintain an action to recover real property, er the possession thereof, or make an entry, or interpose a defence or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when liis title first'descends, or his cause of action or right of entry first accrues * . * * within the age *299of twenty-one years * * * the time of such a disability is not a part of the time, limited in this title, for commencing the action, or making the entryj or interposing the defence or counterclaim; except that the time so limited cannot be extended more than ten years after the disability ceases or after the death of the person so disabled.”

The ajipellants claim that the correct method of computing the period of limitation is to allow a full twenty years from the accruing of the cause of action, then to note the date when the “ time so limited” would expire, if no "disability was involved. If this expiration of the-limitation falls at a date more than ten years after the attainment of majority of the infant, he is entitled to no extension. If it falls at a date less than ten years after his majority, he has up to the end of that ten years’ extension of time in which to commence action. Applying that interpretation of the statute to the facts of this case, they add the twenty years to the date of the accruing of the. cause of action, December 30, 1878, and thereby make the period of limitation December 30, 1898, if there was nothing to extend -it. As on that date Fredericka was over thirty-eight years of age, she having become of age on August 20, 1881, she had been allowed twenty years, and over ten years had elapsed after her disability had ceased in which to commence the action. And so they claim the Statute of Limitations had fully run.

This method of computation is not that adopted.by the Court of Appeals. As I understand the rule laid down by that court, it is to take the date of the coming of age of the infant as the starting point; to that date add twenty years, and from that ascertained date look back to the date when the cause of action accrued, and if said-date was within the period of disability and not more than ten years prior to the infant’s coming of age and the suit is brought within twenty years after its coming of age the statute has not run.

*In Howell v. Leavitt*(95 N. Y. 617) Judge Finch said: “It is further contended that the Statute of Limitations barred the right .of Louise M. Howell. The facts were that she became of age December 31, 1864; that Roberts got possession claiming title as owner March 15, 1858; and the action was begun 'November 7, 1878. The appellants’ construction of the Code (§ 88,* Code of *300Civ. Pro. § 375) is in substance that where there is a. disability the action must be brought within ten years after its termination ; and Louise Howell, having reached full age December '31, 1864, had only until December 31, 1874, in which to sue. .The. effect of this contention would, be to cut. down the twenty years’ limitation to a little over sixteen years by reason of a disability of infancy. In a' ease where the canse of action accrued to an infant twenty years of age the limitation would be cut down to. eleven years ; and that which was intended for'the relief and benefit of a person under disability is made to operate as a positive injury. • We have already declined to adopt that.construction. *(Acker*v. *Acker,*16 Hun, 174; 81 N. Y. 143.) The exception of the Code relates to the extension, of the time limited, and puts restraint only upon that extension. It means that the disability shall not add more than ten years to the time limited after the disability lias ended. Practically in a case of infancy, it makes the extreme possible limitation a period of thirty bné years. If the cause of action accrues to an infant on the- day of its birth for -twenty:One years the running of the statute is suspended ; then it begins to run; but the time limited— that is, the twenty years considered as a period —- having in .fact'elapsed, it is an extension off that .period' which is in progress, and the exception limits that added time to not more than ten. yeaz-s after full age; that is, until the expiration of thirty-one yeai-s. But for the exception the infant would have' had foi-ty-one years. In the present case-Louise Howell had twenty years from December 31, 1864, in which to sue,- because giving her .the full tizne of twenty years after that date did .not extend the whole time from the accruing of the cause of action more than ten years added after she arrived' at full age.. Giving her, till 1884' made the whole-period from the entry of Boberts less than- twenty-seven years, so that her infancy extended the twenty years, the time limited, only about .seven years, and so did not violate the exception. What there is of difficulty in the section lies*-in the phrase ‘ after the disability ceases.’ That relates only to the extended tizne and has no - effect in any casé to cut: down or lessen the liznitation of twenty years. To that-'.the party is always entitled, and in case of a disability, to as much-more as the period of-disability would add, except that such addition must not be longer, than .ten years added. *301after the disability has ended.” In that case, it will be seen that Louise Howell being twenty-one in 1864, and the suit having been begun November 7, 1878, she was about thirty-five years of age and the suit was held to have been properly brought twenty-seven years after the cause of action accrued.

In *Darrow*v. *Calkins*(154 N. Y. 503), Harrow died on November 13, 1864, leaving two infant children. The adverse possession commenced October 18, 1867. The infants were then nine and eleven years of age respectively. One became of age in 1877 and one in 1879. Talcing the eldest child and adding twenty years from the time it became of age would bring the date 1897. The adverse possession was in 1867, thirty years prior thereto. The action was commenced in 1894, twenty-seven years after the cause of action accrued and when the infant had reached the age of thirty-eight, and seventeen years after he became of age. The court said: “The plaintiffs at the death of Harrow were infants and although this action was not commenced until thirty years after his death nor until fifteen years after the younger of the plaintiffs became of age, it seems under the case of *Howell*v. *Leavitt*(95 N. Y. 617) the plaintiffs although they have slumbered upon their rights during an adverse possession of twenty-seven years, were not barred by the Statute of Limitations.”

In *Brown*v. *Doherty*(185 N. Y. 383) the facts were that the child became of age on Becember 21, 1889. Adding twenty years would make 1909. The' adverse possession began on August 5, 1878. The action was commenced on March 9, 1902, that is, over twenty-three years after the cause of action accrued, and when the child had reached the age of thirty-two and a half. Judge G-raA said: “It becomes unnecessary to discuss the question of whether title has been gained by the plaintiff through an adverse possession during the twenty-three years of her occupatiqn. Upon the authority of *Howell v. Leavitt*(95 N. Y. 617), it . would hardly appear that the facts of this case bring the defendants, who were infants at the time of the sale, within the provisions of section 375iof the Code of Civil Procedure.”

Applying those cases to that at bar, we find that Fredericka became of age on August 20,1881. Twenty years thereafter would accrue on August 20,1901. The cause of action accrued Becember *30230, 1878, so that giving her until 1901 to commence her action would have made the Whole périod from the time the cause of-action accrued less than twenty-three years, so that her infancy would have extended the twenty-year' period , of- limitation only about three years, and so not violated the exception.' The action having been brought on February 21, 1899, only seven -weeks elapsed over the twenty years, and of. course the time Was far within-the ten years allowed. _ . •

It seems clear that, although it is now the settled law of this State that title by prescription by the elevated railroads niaybe obtained by adverse possession for twenty years, and that when that period has been set running in the lifetime .of the ancestor.it is not suspended during the infancy of his heirs or devisees, yet that in this case at the time the cause of action accrued, the .remaindermen being infants, the exceptions set forth in section 375. of the Code of Civil Procedure apply, so that when this action was instituted title by prescription against said infants had not vested in the defendants. - The plaintiff having purchased at a partition sále these infants’ property -took it with the rights of such owners.1 *(Pappenheim*v. *Metropolitan El. R. Co.*(128 N. Y. 436).

Ho-question is made upon this appeal of the amounts of the award. The judgment should, therefore, be affirmed) with costs to the respondent.

Pattbbson, P. J„ Ingbaham and Houghton, JJ., concurred Laughlin, J., concurred in result.

*

 Code Proc. § 88.— [Rep.

Lau&hlin, J. (concurring):

I agree'with Mr. Justice Clabke that the judgment, is sustained by *Howell*v. *Leavitt*(95 N. Y. 617) and the decisions following it; but I am not prepared to approve, the test which- he applies to a given state of facts to determine whether under the construction placed by that'decision on the provisions of section 375 of the Code of. Civil Procedure, the Statute of Limitations has run) and wére the question open 1 would hold that the recovery is right as- to twofiftlis and erroneous as to three-fifths. The plaintiff acquired title to the premises by a referee’s deed in partition on the' 8th day of June, 1891, prior to which time the title was vested in five children of one, John Lang, Who died on the 30th day of January, 1875, *303leaving a last will and testament under which title became ■ ultimately vested in them as tenants in common. These children had a vested remainder on the 30th day of December, 1878, when the cause of action for the trespass to their easements set forth in the complaint accrued. The youngest of the children became of age on the 18th day of October, 1891, and the second youngest on the 14th day of September, 1889. The action was commenced on the 21st day of .February, 1899. It would seem that there is no room to question that under section 375 of the Code of Civil Procedure an infant has at least ten years after becoming of age to commence an action of this nature, even though that will authorize bringing the action more than twenty years after the cause of action accrues. Therefore, as to the undivided two-fiftlis interest in the premises, which was vested in the two infants who became of age within ten years prior to the commencement of the action the recovery is clearly right and should be affirmed. ■ The other three infants became of age qn the ,20th day of August,'1881, the 17tli day of July, 1885, and the 30th day of June, 1887, respectively. With respect to the three-fifths interest, representing the interests of these three, infants, more than ten years elapsed after they became of age before the action was commenced and it was not commenced within twenty years after the cause of action accrued. I am of opinion therefore, that the Statute of Limitations should, constitute a bar to the recovery ; but I recognize that this view is not in accord with the decision in *Howell*v. *Leavitt (supra)*and the cases following it. I think, however, that all of the views expressed in the.opinion in that case are not'consistent and that the rule understood to have been prescribed thereby is not in accordance with the plain provisions of the statute. But the legal profession and the courts' have encountered great difficulty in understanding and applying that decision. The opinion shows that the decision was made for the purpose of securing to an infant in all cases the benefit of the Statute of Limitations of twenty years, it apparently having been strenuously contended that the statute should be so construed that an infant- in no event should have more than ten years after arriving at his. majority even though this would not give him in all both during infancy and majority the full period to which adults are entitled. The opinion does not show that the court considered any other question or that *304a construction which would give the infant in all cases at least twenty years, the same as an adult, and in every case at least ten years after attaining his majority, was even suggested. I am impressed with the conviction that a different construction of section 375 would more certainly carry into effect the intention of the Legislature and establish a rule which could be more easily understood and more readily applied. The provisions of section 375, so far as material, are as follows.: “ The time of such a disability is not a part of the time, limited in this title, for commencing the action, or making the entry, or interposing the defence or' counterclaim, except that the time so limited cannot be extended more than ten years, after the disability ceases.”

■ The. confusion has, I think, arisen over regarding the Statute of Limitations as wholly *suspended*during the infancy. That is not what the Legislature has prescribed. By this construction no force , or effect is given to the significant word *“*except ” and the words following it which qualify the phrase that the time of the disability is not a part of the. time prescribed in the Statute of Limitations. It is quite evident, I think, that this section should be construed as if it read, as follows: *“*The time of such a disability,” namely, the period of infancy after the cause of action has accrued, .“ is not a part of the time, lirilited in this title,” namely, the twenty years for commencing the action, “ *except*that the time so limited,” namely, - the twenty years, “ cannot be extended more than ten years after the disability ceases.” There is nothing here which would necessitate an abridgement of the full period of twenty years in any case. The Legislature dealt only with the twenty-year period and an extension not an abridgement thereof. The intention was that .the twenty years should be so extended when nece'ssary to give the infant in all cases ten years after arriving at the age of twenty-one.The effect of the clause inserting the *exception*is that the period of disability is not a part of the twenty years excepting in .those cases where, by excluding the period of infancy, the twenty years would be extended to a date more than ten years subsequent to the infant’s attaining his majority,- and in such case the- period -of infancy shall be considered to the extent-of limiting the time to ten years after the infant becomes of age. The statute in effect pro^ •vides tliat the period of infancy shall not be computed excepting *305for the purpose of preventing the continuance of the limitation for a period of longer than ten years after the disability ceases. The word *“*extended,” as here used, does not mean *“*added to ” but it is used synonymously witli *“*continued.” It does not contemplate the addition of the period of infancy or of the ten years to the period prescribed, but rather that the twenty years’ period prescribed shall not be so further extended on account of the infancy as to confer the right to bring the action for a period longer than ten years after the infant becomes of age. Realizing that these views are not in accord with the rule apparently prescribed in *Howell*v. *Leavitt (supra),*and followed in some subsequent cases, I would not presume to voice them in a majority opinion, but, for reasons stated, I feel justified in presenting them in a concurring memorandum in the hope, with which I know many judges and members of the bar are in sympathy, that the Court of Appeals may either reconsider the question or make the rule intended to'be announced in that case more clear, for I think that it is not so plain or readily understood, as a rule on such an important point should be, but, on the contrary, it requires most careful study to grasp it, and then there is room for reasonable doubt as to its application. As I understand the decision in *Howell*v. *Leavitt (supra),*the court did not adopt as the method of determining whether or not the statute has run, the plan suggested in the majority opinion, of starting.the Statute of Limitations at the date the infant attains his majority and figuring back frozn the date thus obtained. It seezns to me that the effect of the decision is that the Statute of Liznitations is to be applied frozn the date the cause of action accrues, adding to- that date the statutory pez'iod of twenty yeai’s, applicable alike to izzfants and to adults, and adding to the date thus obtained, if the infant shall then have attained his majority, and if not, then addizzg to the date of his majoiity the period of disability after the cause of action accrues to the entire extent of such period, provided it does not result in the addition to the twenty years, assuming the twenty years to expire on> or after the majority of the infant, or, as already "indicated, to the date of his majority if the twenty years expire before his majozity, of znore than ten years after the infant attains his majority, and if the period of disability be more than *306ten .years, then by adding ten years' only. This evidently means that if but for tlie provisions, of - section 375. of the Code of Civil Procedure, herein quoted, the Statute of Limitations, would run against an infant before he attains- his majority, he is to have,, after attaining Ids majority,-an additional period equal to the period of his disability, not exceeding, however, ten years, within which to bring the action; and that if the statute applied- from the date the cause of action accrues would not run until after-he attains his majority, he is entitled to have the period of his disability, not exceeding ten years, added to-the time when the statute would otherwise have run. The practical working of this construction would seem to be that where a cause of action accrues in favor of, an infant one year-of age or under, lie has ten years after attaining his majority within which to bring the action,-and if over one year of age he has twenty years from the time the cause of action accrues and the period of his disability, in addition thereto, -not, however, exceeding ten years in any casé. It would séem that :a- more just, plain and practical construction would be that, all infants should have the full benefit of the twenty-year, period after the. cause of action accrues, the same as an adult, and of such-additional period ás may be necessary to give them in all cases ten years after attaining their majority, and no-longer. If, however," the *TIowell*casé is to be deemed the settled construction, I think that the rule therein intended to be prescribed should be made so plain and clear that one would not be obliged to study and weigh it before being -able to properly apply it. Although we are all agreed in the case at bar that that decision requires "an affirmance,, we differ as to the method of ajiplying the, rule t-ó a given case to such añ extent that on other facts we arrive at different results."

Judgment affirmed, with costs.