employe, and whatever differences of meaning may arise when the word is used in different relations and connections, the safe mode of interpreting the word, as used in this statute, is to take into account the cause for the passage of the act, so far as it may be ascertained, and the evil sought by the act to be remedied.

This statute belongs to a large class of legislation designed for the promotion of the welfare of laborers and workmen, and may be classed with the act of parliament of 38 and 39 Vic., chap. 90, entitled "Employers and workmen act," and other like statutes, and the acts of our own legislature for the limitation upon the employment of children of tender age, the limitation of the hours of labor, the protection of laborers under the acts for the inspection of factories, and acts like chap. 380 of the Laws of 1889, "To regulate the rate of wages on public works and to define what laborers shall be employed thereon." In the construction of an act passed for such purpose, we are not to adopt the rule of a strict construction as is done in the case of penal statutes and laws in derogation of the common law; although it is apparent, that in one aspect of this statute, it does interfere with the right of the employer to make a bargain with his employe in respect to the time of payment for his services. Nor should the statute be loosely, which is generally called liberally, construed; it should receive that interpretation which the court gave to the act involved in the case of Chamberlain v. West. Trans. Co., 44 N. Y., 305, that is to say, fairly to carry out the policy which the statute was enacted to promote. If the words used are not explicit, their meaning must be gathered from the occasion and necessity of the law. In so construing the statute, the reason or motive upon which the legislature proceeded and the design sought to be accomplished must be held in mind. The statute should be construed in accordance with the nature and obvious import of the language there used, and not by resort to subtle and forced construction for the purpose either of limiting or extending its operation. Chamberlain v. Western Trans. Co., supra, and Waller v. Harris, 20 Wend., 555-561. As was said by Judge Jewett in Tonnele v. Hall, 4 N. Y., 144: "Whenever the intention can be discovered, it ought to be followed with reason and discretion in its construction, although such construction may seem contrary to its letter." Notwithstanding the comprehensive meaning which has been above accorded to the word employe, for the purposes of the construction of this statute, yet the statute may be qualified and restricted by reference to other parts of it and the circumstances and facts existing at the time and to which they relate. As Judge Allen says, in the case of Smith v. People, 47 N. Y., 337: "A literal interpretation of words in most common use, and having a well defined meaning as ordinarily used, would not unfrequently defeat rather than accomplish the intent of the party using them. If, in reading a statute in connection with other statutes passed at or about the same time, a doubt exists as to the force and effect the legislature intended to give to particular terms, that is, as to the meaning which it was intended they should bear and have in the connection in which they are used, it is also com

[Ct. App. petent to refer to the circumstances under which, and the purpose for which, a statute is passed, to ascertain the intent of the legis lature. The ground and the cause of the making of a statute explains the intent."

Under these rules of construction and interpretation, it is obvious that this act was intended by the legislature to take its place among others for the protection of laborers and workmen.

There is no special reason observable, either from the act itself or from the preceding legislation leading up to it, why the license clerk in the mayor's department in the city of Buffalo, or the secretary and treasurer of the park commissioners of that city, or a public school teacher or a fireman or a patrolman should be paid otherwise than in accordance with the terms of his agreement with his respective employers. Not one of those persons represents a class asking for legislation in its behalf. It would, therefore, be extending the statute beyond what appears to us to be the obvious meaning of the legislature in passing it, to apply it so as to cover the cases of those persons.

Very little, if any, aid may be afforded in the construction of this statute, in order to show its meaning and application, by reference to other statutes pertaining to laborers, except others of its own class as stated above.

There is, however, a series of cases having a bearing upon the subject-matter involved, arising under chap. 40 of the Laws of 1848, making stockholders of corporations liable to "laborers, servants and apprentices" of the corporation, and holding that such law cannot be extended by the courts to clerks and contractors and other persons. Reference may be made to Krauser v. Ruckel, 17 Hun, 463; Coffin v. Reynolds, 37 N. Y., 640; Hill v. Spencer, 61 id., 274, and Wakefield v. Fargo, 90 id., 213, for discussions of the principle that an act manifestly designed for the protection of servants, laborers and apprentices cannot be properly extended by construction to other persons, although the word "servant" or "laborer" detached from the connection in which it is used in the statute, and used metaphorically, is broad enough to include any person who engages his services to another for compensation.

It follows, therefore, that judgment must be ordered for the defendant upon the submission.

DWIGHT, P. J., and CORLETT, J., concur.

ROBERT M. CLARE, as Surviving Partner of Charles C. Clare, Dec'd, Resp't, v. SAMUEL LOCKARD, App'lt.'

(Court of Appeals, Second Division, Filed October 7, 1890.) LIMITATION-SUBSTITUTED SERVICE EQUIVALENT TO PUBLICATION TO SAVE ACTION FROM BAR OF STATUTE UNDER $399 OF THE CODE.

1

Where a summons is delivered to the sheriff for service prior to the expiration of the time prescribed by the statute for the commencement of an action, a substituted service, made after the expiration of such time, but within the time prescribed by § 399 of the Code, is equivalent to a first publicatio of the summons to save the action from the bar of the statute under that section.

1 Affirming 16 N. Y. State Rep., 739.

APPEAL from a judgment of the general term of the supreme court, second judicial department, entered on an order affirming a judgment entered upon a verdict directed by the court.

This is an action brought by the plaintiff to recover on a promissory note, with interest from the date of its maturity, and also for goods sold and delivered.

So much of the judgment as embraces the amount found to be due for goods sold and delivered is not questioned. The appellant assigns for error that portion of the judgment which includes the amount adjudged to be due on the note, on the ground that it is barred by the statute of limitations. The note became due and payable May 20, 1880. Defendant never made any payment on account of either the principal or interest secured thereby. On the 18th day of May, 1886, the plaintiff caused to be delivered to the sheriff of the county in which the defendant resided a summons and notice, with the intent that it should be actually served upon the defendant.

Before the expiration of the time for the service thereof as provided by 8 399 of the Code of Civil Procedure, a return was inade by the sheriff that proper and diligent effort had been made to serve the summons upon the defendant, but that he avoided service so that no personal service could be made. Thereafter and on the 8th day of June, 1886, an order authorizing and directing a substituted service of the summons was duly granted, and in pursuance thereof such service was made within ten days

thereafter.

Martin E. Halpin, for app'lt; John Henry Hull, for resp't.

PARKER, J.-Had the sheriff succeeded in making personal service within the time prescribed by § 399, or had there been a first publication of the summons pursuant to an order for service upon him in that manner, then it is conceded that the decision of the court would not admit of question. But the summons was not served personally, or by publication, but a substituted service thereof was timely made in accordance with §§ 435 and 437 of the Code of Civil Procedure. The appellant's contention is, that while the action was properly commenced by a substituted serv ice of the summons duly authorized, nevertheless it did not operate to save the note from the bar of the statute, because the summons was not served either personally or by publication. We think otherwise. By $$ 380 and 382 of the Code of Civil Procedure, it is provided that an action upon a contract obligation or liability must be commenced within six years after the cause of action has accrued. Section 398 provides that an action is commenced against any defendant, within the meaning of any provision which limits the time for commencing an action, when the summons is served upon him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him.

To meet any emergency which might arise by the necessary absence or concealment of a debtor, it was provided by § 399 that "an attempt to commence an action in a court of record is equiva N. Y. STATE REP., VOL. XXXIII. 42

lent to the commencement thereof, within the meaning of each provision of this act which limits the time for commencing an action, when the summons is delivered with the intent that it shall be actually served, to the sheriff" of the county in which the defendant resides, if "followed within sixty days after the expiration of the time limited for the actual commencement of the action by personal service" of the summons, or by the first publication thereof as against that defendant pursuant to an order of service upon him in that manner.

It is apparent from the several sections to which we have alluded that the legislature intended that whether a cause of action should be deemed barred by limitation of time should be dependent upon the actual commencment of the action and not upon the manner in which the summons should be served.

Now this action was duly commenced within the time prescribed by $399, by a substituted service of the summons in accordance with the requirements of §§ 435,436 and 437, and these sections, forming as they do a part of the same statute, must be construed together. Section 437 provides that in the case of a substituted service of a summons "the same proceedings may be taken thereupon as if it had been served by publication." These two methods of service are thus pronounced to be of equal force in the support which they give to the proceedings based thereon. Each may therefore be regarded as the equivalent of the other where either method of service is authorized.

In Pomeroy v. Ricketts, 91 N. Y., 668, the defendant appeared generally, and subsequently moved to discharge an attachment on the ground that personal service of the summons was not made within thirty days after the granting of the warrant, as required by § 638, and this court held that such section must be read with 424, which provides that the "voluntary general appearance of the defendant is equivalent to personal service of the summons upon him."

Following the rule adopted in that case, § 399 must be so read as to entitle a plaintiff to the benefit of that section, where the delivery of the summons is followed within the time therein prescribed by the first publication of the summons pursuant to an or der for service in that manner, or by its equivalent, a substituted service of the summons, made pursuant to §§ 435 to 437 inclusive. The judgment should be affirmed.

All concur, except POTTER, J., absent.

AUGUST C. NANZ, App'lt, v. JESSE OAKLEY, Resp't'.

(Court of Appeals, Second Division, Filed October 7, 1890.)

EXECUTORS AND ADMINISTRATORS-BOND OF-PROPER PARTY TO PROSECUTE -CODE CIV. PRO., § 2607, 2609.

Plaintiff was the assignee of a claim represented by the surrogate's decree directing an administrator's bond to be prosecuted, upon which execution had been returned unsatisfied. Leld, that although the order of the surrogate may not have authorized plaintiff to bring the action in his 'See 30 N. Y. State Rep., 895.

name, it may be assumed that he, at the time of the commencement of the action, was entitled to the money due upon the decree, and as defendant did not raise the question by demurrer or answer, the error cannot be considered here.

MOTION for reargument.

David Thornton, for motion; Wm. H. Arnoux, opposed.

BRADLEY, J.-The main ground of the motion is that the action cannot be supported in the name of the plaintiff, and that the question whether he was a proper party plaintiff for its maintenance was not considered in the determination of the appeal by this court. The practice formerly was for the surrogate granting administration to cause the administrator's bond to be prosecuted at the request of the party aggrieved by its forfeiture. People v. Dunlap, 13 Johns., 437. And this was pursuant to statute.

1 R.

L, 447, § 10; Laws 1830, chap. 320, § 23; 2 R. S., 2 ed., 53, $19. 19. There was also a later statute concurrently operative with that last before mentioned, and which provided for the assignment of the bond by the surrogate to the party in whose favor a decree was entered, after the return of the execution unsatisfied, to be prosecuted by such party. Laws 1837, chap. 460, § 65; People v. Guild, 4 Denio, 551. While under the former of such statutes the action upon the bond was prosecuted by the surrogate, under the latter, by virtue of its assignment, the action after the Code might be brought in the name of the person in whose favor the decree was entered. Thayer v. Clark, 48 Barb., 243; Baggott v. Boulger, 2 Duer, 160; Cridler v. Curry, 44 How., 345; People v. Demarest, 4 Abb., 292.

The bonds of administrators then, as was the bond in the present case, were made in the name of the people, and it may be assumed that they could be prosecuted at law in the manner only as authorized by the statute. Annett v. Kerr, 2 Rob., 556. The statute providing for the assignment of such bonds by the surrogate was repealed by Laws 1880, chap. 245; and the provisions for prosecution of them are now found in the Code Civ. Pro., § 2607, 2608, 2609. They provide for the prosecution of the bond, 1. In the name of the person in whose favor decree was made on return of execution unsatisfied. 2. By the successor of the defaulting administrator whose letters have been revoked. 3. By any person aggrieved, in behalf of himself and all others interested, upon obtaining leave by order of the surrogate so to do in case letters of an administrator have been revoked and no successor appointed. The plaintiff comes within neither of these provisions of the Code. He was, however, the assignee of the claim represented by the surrogate's decree, upon which execution was returned unsatisfied. Although the order of the surrogate may not have authorized the plaintiff to bring the action in his name, it may be assumed that he, at the time of the commencement of the action, was entitled to the money due upon the decree; and the question was one of his legal capacity to sue. This ques tion is not presented in such manner as to require consideration. The complaint set forth all the facts requisite to such objection, which was not taken by demurrer or answer. The statute upon