273 A.D. 4, Stutz v. Guardian Cab Corp.

Citation:273 A.D. 4, 74 N.Y.S.2d 818
Party Name:ROLF STUTZ, as Administrator of the Estate of Anna J. Bajor, Deceased, Appellant, v. GUARDIAN CAB CORPORATION, Respondent, et al., Defendants.
Case Date:November 28, 1947
Court:New York Supreme Court Appelate Division, First Department
 
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273 A.D. 4

74 N.Y.S.2d 818

ROLF STUTZ, as Administrator of the Estate of Anna J. Bajor, Deceased, Appellant,

v.

GUARDIAN CAB CORPORATION, Respondent, et al., Defendants.

Supreme Court of New York, First Department.

November 28, 1947

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APPEAL from an order of the Supreme Court at Special Term (LEVY, J.), entered November 27, 1946, in New York County, which granted a motion by defendant-respondent for a dismissal of the complaint pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice.

COUNSEL

George R. Ammerman of counsel (Harry Zeitlan with him on the brief; Samuel Lerner, attorney), for appellant.

Moses Katcher of counsel (Jacob J. Milman with him on the brief; Harry P. Rich, attorney), for respondent.

CALLAHAN, J.

This action has been brought to recover damages on two causes of action (1) for wrongful death of the plaintiff's intestate and (2) for personal injuries sustained by the decedent through the alleged negligence of the defendants.

On March 26, 1943, the deceased was struck by a taxicab of the defendant Guardian Cab Corporation and operated at the time of the accident by the defendant Horowitz. The injuries inflicted were of such a nature that they resulted in death on the same day. The complaint alleges that the plaintiff Rolf

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Stutz is the only child and next of kin of the deceased, to whom letters of administration on her estate were duly issued prior to the institution of suit. We thus assume that there is no surviving spouse or other person interested in the decedent's estate. More than three years after the date of accident and injury resulting in death this action was commenced on September 16, 1946, by the service of a summons and complaint on the defendant Guardian Cab Corporation. Meanwhile, during the period from May, 1942, to March 8, 1946, it is alleged in the complaint that the plaintiff Rolf Stutz was in the service of the Armed Forces of the United States.

On motion of the defendant Guardian Cab Corporation the complaint has been dismissed on the ground that the action had not been brought within the time limited by law for the commencement of suit (Decedent Estate Law, § 130; Civ. Prac. Act, § 49).

The plaintiff contends that he is entitled to the protection of the New York Soldiers' and Sailors' Civil Relief Act (Military Law, § 308) substantially identical with the Federal Soldiers' and Sailors' Civil Relief Act of 1940, as amended (U. S. Code, tit. 50, Appendix, § 525), and providing as follows: 'The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action shall have accrued prior to or during the period of such service.'

If the period of the plaintiff's military service is to be excluded in computing the time limited by law for the bringing of this action, it is clear that the Statute of Limitations constitutes no bar in this case.

The first cause of action for wrongful death is authorized to be maintained by the legal representative of a deceased on behalf of the surviving spouse and next of kin, and 'Such an action must be commenced within two years after the decedent's death' (Decedent Estate Law, § 130). This requirement as to time within which to bring suit has been considered a limitation upon the remedy and not upon the right ( Sharrow v. Inland Lines, Ltd., 214 N.Y. 101, 110...

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