Goldenberg v. Murphy/Opinion of the Court

This was a suit to recover back duties in imports paid under protest, commenced in the superior court of the city of New York, before the enactment of the Revised Statutes, and the only question presented by the writ of error is whether the suit was 'brought within 90 days after the decision of the secretary,' as required by the act of June 30, 1864, c. 171, § 14, (13 St. 215,) then in force. The facts are that the decision was made by the secretary on the twenty-eighth of May, 1872, and it was agreed at the trial that the 90 days expired on the twenty-sixth of August. A summons in the case was made out in due form of law, bearing date August 21, 1872, and efforts were made to serve it on the collector without the intervention and efforts of the sheriff; but, failing in this, the summons was, on the twenty-sixth of August, delivered to and received by the sheriff of the county of New York, where the collector resided, with the intent that it should be actually served. Service was in fact made on the 27th:

The New York Code of Civil Procedure, § 99, is as follows:

'An action is commenced as to each defendant when the summons     is served on him, or on a co-defendant, who is a joint      contractor, or otherwise united in interest with him.

'An attempt to commence an action is deemed equivalent to the     commencement thereof, within the meaning of this title, when      the summons is delivered, with intent that it shall be      actually served to the sheriff or other officer of the county      in which the defendants, or one of them, usually or last      resided.'

A suit is brought when in law it is commenced, and we see no significance in the fact that in the legislation of congress on the subject of limitations the word 'commenced' is sometimes used, and at other times the word 'brought.' In this connection the two words evidently mean the same thing, and are used interchangeably. As this suit was begun in a state court of New York, the laws of that state must determine when it was brought, and as that is prescribed by statute, we have no need of inquiry as to the practice in other states or the rules of the common law.

As it was conceded that under the decision of this court in Arthur v. Lahey, 96 U.S. 112, the importers were entitled to a verdict if the suit was brought in time, it follows that the instruction of the court to find for the collector was erroneous. The judgment is reversed, and the cause remanded for a new trial.