Arnold v. Mayal Realty Co.

• Decision Date: 14 April 1949
• Citation: 85 N.E.2d 616,299 N.Y. 57
• Parties: ARNOLD v. MAYAL REALTY CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

299 N.Y. 57

85 N.E.2d 616

ARNOLD

v.MAYAL REALTY CO., Inc., et al.

Court of Appeals of New York.

April 14, 1949.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Frances Arnold, as administratrix of the Estate of John Arnold, deceased, against the Mayal Realty Company, Inc., and others to recover for the wrongful death of the deceased.From an order of the Appellate Division of the Supreme Court in the first judicial department, 274 App.Div. 1, 79 N.Y.S.2d 566, entered July 12, 1948, which affirmed, by a divided court, an order of the Supreme Court at special term, Walter, J., entered in New York County, granting a motion by plaintiff for leave to bring in John J. Meenan, Inc., as an additional party and for leave to issue and serve a supplemental summons and amended complaint on the defendants, John J. Meenan, Inc., appeals by permission of the Appellate Division.

Orders reversed and motion denied, and questions certified answered in the negative.Joseph Kane, of New York City, for appellant.

Andrew M. Lawler, of New York City, for respondents.

DYE, Judge.

The within action to recover for the wrongful death of plaintiff's intestate was commenced in June, 1945, against the defendants, Mayal Realty Company, Inc., and Julius Weiss, doing business as Weiss Pulp Produce Company, and issue was joined by the filing of their answers of June 27, 1945, and June 29, 1945.Thereafter on January 22, 1947, exactly two years from date of decedent's death, the plaintiff served a notice of motion for leave to bring in John J. Meenan, Inc., the appellant here as an additional defendant and for leave to issue and serve a supplemental summons and amended complaint on the said John J. Meenan, Inc., and the defendants, Mayal and Weiss.The motion was returnable January 30, 1947.The Special Term, by order entered March 17, 1947, granted the motion and thereafter on May 29, 1947, the supplemental summons and amended complaint were served on the appellant Meenan as an additional defendant who now challenges such service as untimely because not made within two years after decedent's death.Decedent Estate Law,Consol.Laws, c. 13, s 130.Upon appeal, the Appellate Division, by a divided court, found that annexation of the proposed supplemental summons and amended complaint to the moving papers was notice to the defendant of the plaintiff's claim against it and served to extinguish the reasons for the Statute of Limitations.A liberal rule of construction was then applied to hold the service timely.It granted leave to appeal to this court and certified the question: ‘Was the action commenced against appellant before the 2 years Statute of Limitations had run?’

We must reject the construction adopted by the court below as unwarranted and unauthorized.A Statute of Limitations is not open to discretionry change is not open to discretionary change the circumstances, Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45, and when given its intended effect such a statute is one of repose, and experience has shown that the ‘occasional hardship is outweighed by the advantage of outlawing stale claims.’Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 302, 200 N.E. 824, 827, 104 A.L.R. 450;Jackson ex dem. Bleecker v. Wiseburn, 5 Wend. 136;Wait v. Van Allen, 22 N.Y. 319;People ex rel. Northchester Corp. v. Miller, 288 N.Y. 163, 166, 42 N.E.2d 469.

The service of the motion papers cannot be enlarged beyond their express scope which was to bring in Meenan as an additional defendant.The annexed supplemental summons and amended complaint were evidenctiary in nature and...