¶1(dissenting.) This action was brought under the Commercial Bent Law (L. 1945, ch. 3, as amd.) on June 1, 1950, to recover for overcharges of rent for the period commencing May 8,1947, and ending in December, 1948. The complaint was dismisséd in the court below on the ground that the action was not commenced within one year of April 11, 1949, as prescribed in section 11 of the Control Law.
¶2The plaintiffs admit that the action was commenced after April 11, 1950, but assert that the claim upon which it is based was originally instituted by way of counterclaim on or about January 8, 1950 (when the claim was more than one year old), in a dispossess proceeding brought by the defendant as landlord against plaintiffs. Upon motion of the landlord in that proceeding, the counterclaim was dismissed by order dated April *1029I 19, 1950. In the circumstances it is urged that section 23 of the Civil Practice Act authorizes an additional year, beyond the one year fixed by statute, within which plaintiffs may commence an action after dismissal of the counterclaim in the summary proceeding.
¶3The right to recover alleged excess payments given by chapter 327 of the Laws of 1950, amending chapter 3 of the Laws of 1945, creates a new right, unknown to the common law. Where a special statute confers a right of action unknown to the common law and creates a limitation as to the time of its enforcement, such limitation is deemed to be a part of the statute under which the right arises, so that there is no right of action independent of limitation. It is a part of the cause of action and the bringing of the action within the time prescribed is a condition precedent. (Hill v. Board of Supervisors, Rensselaer Co., 119 N. Y. 344; Matter of Keep, 241 App. Div. 556, affd. 266 N. Y. 583; Carr v. Yokohama Specie Bank, 272 App. Div. 64, affd. 297 N. Y. 674.) Where a statute creates a cause of action unknown at common law, a period of limitation set up in the same statute is an integral part of the statute and is regarded as a matter of substance limiting the right as well as the remedy, and the filing of a suit within the prescribed period is a condition precedent to a recovery, and is unaffected by any of the various saving clauses contained in the exceptions of the general Statute of Limitations. The cause of action is extinguished after the running of the period. (Hamilton v. Royal Ins. Co., 156 N. Y. 327, 338.)
¶4Nor does section 23 extend the time within which actions may be -brought under section 11 of the Emergency Law. Section 23 of the Civil Practice Act is part of article 2 entitled “ Limitations of Time.” Section 23 must be read in conjunction with section 10 of article 2 which states that the provisions of the article constitutes the only rules of limitation applicable to a civil action or special proceeding except “ 1. A case where a different limitation is specially prescribed by law ”. The Control Law (Commercial Bent Law, § 11) specially prescribes that no cause of action ‘ ‘ shall … be instituted unless begun within one year after the cause of action accrued ” or “ within one year ” from April 11,1949, when the cause of action accrued prior to that date. (Mossip v. Clement & Co., 256 App. Div. 469, . affd. 283 N. Y. 554; Carr v. Yokohama Specie Bank, supra.)
¶5It would further appear that section 23 cannot be availed of by the plaintiffs here, defendants in the holdover proceeding. It has been held by the Appellate Division in this department *1030that section 405 of the Code of Civil Procedure (now Civ. Prac. Act, § 23) “ applies only to a plaintiff, and it was not intended to give any rights to a person who was not a plaintiff in an action ”. (Matter of Schlesinger, 36 App. Div. 77, 84.) Special provision has been made for a defense or counterclaim interposed by a defendant in an action. Section 26 of the Civil Practice Act (formerly Code Civ. Pro., § 412) provides that the time which intervenes between the commencement of the action and the dismissal of the complaint or discontinuance of the action is not a part of the time limited for the commencement of an action by the defendant to recover for the same cause of action so interposed as a defense. (Matter of Schlesinger, supra.)
¶6The judgment and orders appealed from should be affirmed, within $25 costs.
¶7Eder, J., concurs with Schreiber, J.; Hammer, J., dissents in in opinion. Judgment and order reversed, etc.