#### GEIBEL v. ELWELL.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Limitation of Actions—Disability—Infancy.

Under Code Civ. Proc. § 396, declaring that if the person entitled to maintain an action is, when the cause of action accrues, a minor, insane, or imprisoned, the time of such disability is not a part of the time limited for commencing an action, except that the time limited cannot be extended more than five years by any such disability, except infancy, or in any case more than a year after the disability ceases, commencement of an action by an infant’s guardian does not set the statute running.

Action by Conrad Geibel against James W. El well. The complaint was dismissed, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Granted.

This action was brought to recover for personal injury sustained by the plaintiff and resulting from the negligence of the defendant. The injury complained of occurred on the 11th day of April, 1884, at which time the plaintiff was between 11 and 12 years of age. It appears from the record that in March, 1886, his grandfather, Philip Bender, was appointed guardian for him, for the purpose of bringing an action against the defendant to recover damages for the injury in question, and on the 6th of May, 1886, the plaintiff commenced that action by his grandfather as guardian. The . defendant answered in the cause, and on March 5, 1888, the case came on for trial, and at the close of the evidence a juror was withdrawn, to admit of a motion for an amendment of the complaint. In August, 1890, a motion for leave to amend was made, and on September 3, 1890, was denied. In January, 1891, the guardian ad litem died. No other guardian was appointed in that action. On January 27, 1892, an order was entered by consent discontinuing the action. On October 3, 1892, plaintiff’s uncle, Philip Bender, Jr., was appointed guardian ad litem for the purpose of bringing this present suit, and this suit was commenced by the plaintiff on the 3d of December, 1892.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Christopher Fine, for plaintiff.

R. D. Benedict, for defendant.

PARKER, J.

The dismissal of the complaint at circuit went upon the ground that the commencement of the first action in May, 1886, operated to remove the disability of the infant provided for by section 396 of the Code, the effect being that the three-years statute of limitations began to run. If such was its effect, it necessarily follows that the plaintiff’s cause of action was barred before this action was brought in December, 1892. The statute which controls this question is as follows (Code):

> Section 380: “The following actions must be commenced within the following periods after the cause of action has accrued.”

> *239Section 383: “Within three years: * * * (5) An action to recover damages for a personal injury resulting from negligence.”

> Section 396: “If the person entitled to maintain an action specified in this title * * * is, at the time when the cause of action accrued either (1) within the age of twenty-one years, or (2) insane, or (3) imprisoned on a criminal charge, or upon imprisonment for the conviction of a criminal offense for a term less than life, the time of such disability is not a part of the time limited in this title for commencing an action, except that the time- so limited cannot be extended more than five years by any such disability, except infancy, or in any case, more than one year after the disability ceases.”

The defendant urges, in support of the dismissal, that, within the meaning of the statute, the plaintiff’s disability to sue ceased when his guardian commenced an action to recover the damages sustained by the infant in May, 1886; that it is not conceivable that a suit properly brought by plaintiff should coexist with a disability of the plaintiff to bring such suit; and that, under the statute, it is not the time of the infancy that is not to be counted, but the time of disability, which ceases when suit is brought. The statute is not well expressed, and because that is so, there has been afforded an opportunity for debate, of which counsel have fully availed themselves. The use of the word “disability” furnishes the basis for the defendant’s contention. It is said that the connection in which it is employed indicates that it was the legislative intent to save the bar of the statute, as against a minor, until he should reach his majority, and such a reasonable time thereafter as should afford him opportunity to take action looking to indemnity for his injuries, unless, before coming of age, he should prosecute by guardian. But it does not seem to us that the statute can be so read. It undertakes to provide that, as against persons while in certain situations, the statute of limitations shall not run. It describes the situations in which persons must be to stop the running of the statute as (1) within the age of 21 years, or (2) insane, or (3) imprisoned on a criminal charge, or upon imprisonment for the conviction of a criminal offense for a term less than life. It then continues:

> “The time of such disability is not a part of the time limited in this title for commencing an action. * * *”

What “time” is it which is thus referred to as one of “disability”? It is the time which must elapse before a person affected by the statute reaches his majority, or while he is insane, or imprisoned, as the case may be. There is no other time or period to which it can refer, and, awkwardly as it is expressed, it nevertheless seems to be clear that the words, “time of such disability,” were used to characterize generally, and without repetition, the three conditions in which a person having a cause of action might be so placed as to need protection from the preceding sections. And in order to give to the statute a construction which starts the running of the three-years statute of limitations before the minor reaches his majority, it is necessary to import into it something which we cannot say was intended by its framers. There is certainly no occasion to strain after such a construction, for if a minor should be protected from the running of the statute until his majority, if he cannot secure a person to act as *240guardian and prosecute Ms action, why should he not be protected if the person consenting to be his guardian, after commencing the action, changes his mind, and discontinues it, as in this case?

As our conclusion is that the action was not barred, the excep- * tions must be sustained, and a new trial ordered, with costs to the plaintiff to abide the event. All concur.