The opinion
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, *303 leaving 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 *304 a 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 *305 for 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 *306 ten .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.