Baker v. Commercial Travelers Mut. Acc. Ass'n

• Decision Date: 13 March 1957
• Citation: 3 A.D.2d 265,161 N.Y.S.2d 332
• Parties: Lillian C. BAKER, Plaintiff-Respondent, v. The COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 332

161 N.Y.S.2d 332

3 A.D.2d 265

Lillian C. BAKER, Plaintiff-Respondent, v.The COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATIONDefendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

March 13, 1957.

Hubbard, Felt & Fuller, Utica (Eugene P. Hubbard and Moses G. Hubbard, Utica, of counsel), for defendant-appellant.

Harry Aarons, New York City, for plaintiff-respondent.

Before McCURN, P. J., and VAUGHAN, KLMBALL, WILLIAMS and BASTOW, JJ.

KIMBALL, Justice.

The plaintiff brought this action on May 9, 1955 to recover upon a contract of accident insurance as death beneficiary thereof.The accident alleged to have caused the death of the insured occurred on November 16, 1953 in Dade County, State of Florida.The policy provided that an action to recover for loss of life, limb or sight had to be commenced within twelve months from the date of the accident causing that loss.The Special Term denied the defendant's motion for summary judgment.Although the time limited by the contract to commence the action had expired, that court held that the cause of action was saved by reason of the provisions of Section 23 of the Civil Practice Act; that the plaintiff had, theretofore and within the contractual limitation of time, commenced an action in the United States District Court for the Southern District of Florida for the same cause and that that action was terminated in a manner other than by a voluntary discontinuance, by dismissal of complaint for neglect to prosecute or a final judgment upon the merits.The motion papers include the proceedings had in the Federal Court in Florida.This appeal presents the question as to the applicability of Section 23 of the Civil Practice Act where the prior action is one brought in a foreign state, as well as the question as to whether, in this case, any action was commenced in the United States District Court in Florida.

It is our opinion that the prior action which could save the cause of action pursuant to said section 23 is an action commenced in the State of New York and that an action brought in either a state or federal court in a state other than New York does not save the cause of action by permitting a new action in this State within one year after the termination of the prior action.The provisions of Section 13 of the Civil Practice Act do not here apply since the limitation of time is contractual and not statutory.As to the limitation of the action, the law of the forum, i. e., New York, must therefore govern.Limitations of actions are matters within the concern of the forum.Commencement of suit in another state will not toll or otherwise affect the provisions for limitation of actions in the state of the forum.Overfield v. Pennroad Corp., 3 Cir., 146 F.2d 889.It follows therefore that, assuming an action was commenced in the United States District Court in Florida where the cause of action arose within the contractual time limit, still that does not make available to the plaintiff the saving statute of New York.Sec. 23, Civ.Prac.Act.This seems to be the rule in other jurisdictions where the question has arisen.Herron v. Miller, 96 Okl. 59, 220 P. 36;Morris v. Wise, Okl., 293 P.2d 547;Estate of Tuckman v. Estate of Cottle, 10 Cir., 175 F.2d 775;Jackson v. Prairie Oil & Gas Co., 115 Kan. 386, 222 P. 1114;Riley v. Union Pacific R. Co., 88 F.Supp. 391, affirmed10 Cir., 182 F.2d 765;Sorenson v. Overland Corp., D.C., 142 F.Supp. 354.

We pass then to the second question which is whether any action was commenced in the federal court.The Special Term, relying principally upon the case of Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A.1917C, 203, held that an action was commenced.We conclude that no action was commenced in Florida and that the Gaines case is not in point.The defendant was a nonresident of Florida, being a New York corporation.The plaintiff sought to commence the action by service of process upon the Insurance Commissioner of Florida pursuant to the Florida Unauthorized Insurers Service of Process Act, F.S.A. § 625.28.Section 625.30 of the Act sets forth certain acts which, if performed by an unauthorized insurer, will constitute the insurance commissioner the attorney of the insurer upon whom 'lawful process' may be served in an action arising out of the insurance contract.The defendant duly moved to quash the service of summons.The district judge granted the motion.In his decision, he stated:

'The motion to quash service was heard on March 29, 1955.Following the opinion in Parmalee v. Commercial Travelers Mutual Acc. Ass'n, 5 Cir., 206 F.2d 523, the service on the Insurance Commissioner of this State by virtue of the authority of the Florida Unauthorized Insurers Process Act, F.S.A. 625.28 was not sufficient to subject this defendant to the process of the Court in this cause.The insured was not a resident of Florida at the time of the application and issuance of the policy in controversy, and there had been no communications or transactions by way of payment of premiums or otherwise between the insured, Baker, and the defendant during the short period of time the insured had resided in Florida prior to his death.'D.C.Fla., 150 F.Supp. 725.

It cannot be doubted that in quashing service, the court found and held that since the defendant had performed none of the acts set out in the Florida statute, it could not be held to have constituted the insurance commissioner its attorney to receive service of process.Inasmuch as the commissioner never was constituted such attorney pursuant to the provisions of the act, it follows that delivery to him of process was a nullity so far as subjecting the nonresident defendant to the process of the court.In other words, the defendant was never served with process in the Florida action.When an action is deemed to be commenced within the meaning of Article 2 of the Civil Practice Act(Limitations of Time), is stated in Section 16 of the Article which provides that the action is commenced when summons is served upon a defendant.The service must be legal service.Where attempted service is quashed as being void and not sanctioned by law, then there has been no service.Erickson v. Macy, 236 N.Y. 412, 140 N.E. 938;Knox v. Beckford, 167 Misc....