In Hopkins v. Lincoln Trust Co., 233 N.Y. 213, 215, 135 N.E. 267, it was stated per Cardozo, J.: ‘ The power thus to revive has been upheld in some jurisdictions (Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483).Summary of this case from Gallewski v. Hentz Co.
Submitted March 1, 1922
Decided April 18, 1922
Middleton S. Borland and Percy F. Griffin for appellant.
Nelson E. Spencer for respondent.
The plaintiff sues at law to recover damages for fraud. The wrong was done on August 20, 1912, and a cause of action then accrued. The remedy was barred by limitation six years thereafter, on August 20, 1918 ( Miller v. Wood, 116 N.Y. 351). Two years later, the law was changed. As amended in 1920, the statute says that in "any action to procure a judgment on the ground of fraud," the cause of action shall not be "deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud" (Code Civil Procedure, sec. 382, subd. 5, as amended by L. 1920, ch. 480, in effect, Sept. 1, 1920). That was formerly the rule where the action was brought "to procure a judgment, other than for a sum of money, on the ground of fraud," in a case which on the 31st day of December, 1846, was cognizable by a court of chancery ( Carr v. Thompson, 87 N.Y. 160; Lightfoot v. Davis, 198 N.Y. 261). The amendment establishes the same rule of limitation in any case of fraud, whether the remedy is equitable or legal. The plaintiff began this action on September 1, 1920. The allegation is that he did not discover the fraud till May 1, 1919. The question is whether he is in time.
We find no token of a purpose to apply the statute by relation to rights already barred ( Matter of Berkovitz v. Arbib Houlberg, 230 N.Y. 261, 270; Jacobus v. Colgate, 217 N.Y. 235). The power thus to revive has been upheld in some jurisdictions ( Campbell v. Holt, 115 U.S. 620). In others, it has been denied or doubted ( Board of Education v. Blodgett, 155 Ill. 448; Eingartner v. Illinois Steel Co., 103 Wis. 373, 380; Danforth v. Groton Water Co., 178 Mass. 472, 476, 478; Dunbar v. Boston P.R.R. Co., 181 Mass. 383, 386). In our own state there are conflicting dicta ( Hulbert v. Clark, 128 N.Y. 295; House v. Carr, 185 N.Y. 453; contra, Germania Savings Bank v. Village of Suspension Bridge, 159 N.Y. 362, 368 ). A decision of the case before us does not compel a choice between them. Revival is an extreme exercise of legislative power. The will to work it is not deduced from words of doubtful meaning. Uncertainties are resolved against consequences so drastic. Reading this amendment in the light of related sections, we find, not the disclosure, but the disclaimer of a purpose to restore what has been lost.
The amendment is part of chapter IV of the Code of Civil Procedure, which states the rules of limitation. Section 414, defining the application of the chapter, excludes "a case where the time to commence an action has expired when this act takes effect" (sec. 414, subd. 4). The new Civil Practice Act contains a like exception (sec. 10, subd. 2). The Revised Statutes and the old Code of Procedure went farther, and excepted not only rights extinguished, but also rights accrued (R.S. part III, ch. 4, tit. 2, sec. 45; Code of Procedure, sec. 73). We held, construing the Code of Procedure, that retroactive force being denied to the original enactment, was denied also to an amendment ( Goillotel v. Mayor, etc., of N.Y., 87 N.Y. 441). We think amendment has remained equivalent to enactment under the codes of practice that have followed. The act takes effect when its amendment takes effect, for this purpose, if not for others.
We hold, therefore, that chapter 480 of the Laws of 1920 does not revive extinguished rights. In thus holding, we do not deny its application to rights accrued, but not extinguished ( Matter of Berkovitz v. Arbib Houlberg, supra, at p. 270). The period of limitation, though it has begun to run, will be extended. The exception is confined to cases where the period has expired.
The order of the Appellate Division and that of the Special Term should be reversed, and the complaint dismissed, with costs in all courts; the first question certified is not answered, and the second question is answered "Yes."
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Orders reversed, etc.