#### Frank C. Hoffman and John Rooney, as Administrators De Bonis Non of Joseph Hudson, Deceased, Respondents, *v.*The Delaware and Hudson Company, Appellant.

Third Department,

July 1, 1914.

¡Limitation of actions — death by negligence—right to bring new action — section 1908 of Code of Civil ¡Procedure construed with section 405.

Section 405 of the Code of Civil Procedure, which grants under certain circumstances the right to bring a new action Within one year, although the Statute of Limitations on the original cause of action has expired, applies to an action brought under section 1902 of the Code of Civil Procedure to recover damages for death caused by wrongful act, where the dismissal of the complaint at the close of plaintiff’s evidence was affirmed on appeal without granting a new trial.

Lyon, J., dissented.

Appeal by the defendant, The Delaware and Hudson Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 20th day of January, 1914, overruling its demurrer to the complaint.

*Lewis E. Carr,*for the appellant.

*Edgar T. Brackett*[ *Walter A. Fullerton, Leary & Fullerton*of counsel], for the respondents.

Kellogg, J.:

By section 1902 of the Code of Civil Procedure an action to recover damages for causing a death by negligence *“*must be commenced within two years after the decedent’s death.” The complaint shows that more than two years elapsed between the death and the commencement of this action; it also shows that within the two years an action was brought, but the complaint was dismissed on the trial at the close of the plaintiffs’ evidence, and the judgment entered upon the dismissal was affirmed by the Court of Appeals without awarding a new trial (See 205 N. Y. 532), and that this action was brought within one year after the termination of that action. The Special Term has held that section 405 of the Code of Civil Procedure applies to this case and enables the plaintiff to maintain this action.

*51In *Conolly*v. *Hyams*(176 N. Y. 403, 407) the court says: *u*The tendency of the latest decisions of this court has been to extend to all claims the benefit of the exceptions given by the Code of Civil Procedure to the bar of the Statute of Limitation, except where there is an express statute or contract to the contrary.” The Special Term felt that the rule in the *Conolly*case rather than that of *Hill*v. *Supervisors*(119 N. Y. 344) controlled. In recognition of the broad principle laid down in the *Conolly*case the beneficial provisions of section 405 of the Code of Civil Procedure have been extended to other cases, to some of which it otherwise might not seem applicable. *(Bellinger*v. *German Ins. Co.,*51 Misc. Rep. 463; 189 N. Y. 533; *McKnight v. City of New York,*186 id. 35; *Ackerman*v. *Ackerman,*200 id. 73.) The cases show a disposition not to extend the *Hill*case beyond the facts actually decided by it. (See, also, *Titus*v. *Poole,*145 N. Y. 423.)

It is urged, however, that this cause of action has no existence except by virtue of section 1902 of the Code, which gives the cause of action only by permitting the action to be brought, and requires it to be brought within two years, and that the two-year provision is not a limitation of time, but is an essential part of the cause of action. The *Conolly*case arose under the Lien Law, which gave a lien to a materialman, but provided the lien should cease unless an action was brought to enforce it within one year. The action *in fern*against the property only arose by virtue of that provision. There was in terms no limitation of the cause of action, but the lien expired in a year unless an action was brought. Nevertheless the Court of Appeals treated the time named as a limitation upon the right to bring the action.

Eecently the death statute has been incorporated into the Code of Civil Procedure, and the general provisions of the Code as to limitations may properly be applied to it except as otherwise expressly provided. Section 414 of the Code provides that the general Statute of Limitations constitutes the only rules of limitation, except in certain cases, among which is where a different limitation is specifically prescribed by law. The death statute prescribes a limitation of two years but does not purport to be an entire Statute of Limitations upon the subject, *52and does not indicate an intent to exclude the provisions of the Statute of Limitations which prescribe disabilities and circumstances under which in given cases the Statute of Limitations is suspended. "Bringing the death statute into the Code shows an intent that it shall be governed by the general provisions of the Code which are not inconsistent with it. It seems reasonable that this beneficial provision may be treated as suspending the operation of the limitation in question. While the matter is not free from doubt we feel that it is tlie better practice to apply the rule in this case which was apgjjed in the *Conolly*and other cases cited. Perhaps cold logic? "and the reasoning of the *Hill*case might produce another regfilt, but the liberal rule of the *Conolly*case should be applied,-

The interlocutory judgment is, therefore, affirmed, with leave to the defendant upon payment of costs to withdraw the demurrer and answer.

All concurred, except Lyon, J., dissenting.

Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer on payment of costs in both courts.