Blessington v. McCrory Stores Corp.

• Decision Date: 17 February 1950
• Citation: 198 Misc. 291
• Parties: Michael Blessington, as Administrator of The Estate of Michael Blessington, Jr., Deceased, Plaintiff,<BR>v.<BR>McCrory Stores Corporation et al., Defendants, and M. A. Henry Co., Inc., Defendant and Third-Party Plaintiff. E. I. Du Pont De Nemours & Company, Third-Party Defendant.
• Court: New York Supreme Court

198 Misc. 291

Michael Blessington, as Administrator of The Estate of Michael Blessington, Jr., Deceased, Plaintiff,

v.McCrory Stores Corporation et al., Defendants, and M. A. Henry Co., Inc., Defendant and Third-Party Plaintiff. E. I. Du Pont De Nemours & Company, Third-Party Defendant.

February 17, 1950.

William M. Blake, Jr., and Thomas F. Frawley for plaintiff.

Galli & Locker (Bondy & Schloss of counsel), for E. F. Timme & Son and another, defendants.

Richards W. Hannah for McCrory Stores Corporation, defendant.

Michael A. Hayes for M. A. Henry Co., Inc., defendant and third-party plaintiff.

Cravath, Swaine & Moore for third-party defendant.

DALY, J.

In an action to recover damages for conscious pain suffered by plaintiff's intestate, a boy seven years of age, prior to his death on March 28, 1945, as a result of injuries which he sustained on December 27, 1944, and which are alleged to have been caused when a so-called "Gene Autry" suit he was wearing caught fire, this court granted the plaintiff leave to amend his complaint by adding a third cause of action (Blessington v. McCrory Stores Corp., 195 Misc. 710).

The first cause of action of said amended complaint is solely against the vendor of the suit — McCrory Stores Corporation — for breach of implied warranty. The second cause of action charges said vendor, M. A. Henry Co. Inc., the manufacturer of the suit, Woonsocket Falls Mill, the supplier of material from which it was in part manufactured, and the individual defendants doing business under the firm name and style of E. F. Timme & Son, as factor and selling agent for said Woonsocket Falls Mill, with negligence in the manufacture and sale of said suit. The third cause of action repeats and reiterates most of the allegations of the first and second causes of action and charges defendants with the alleged creation and maintenance of a nuisance.

The defendants E. F. Timme & Son and Woonsocket Falls Mill now move for an order dismissing the second and third causes of action of the amended complaint, on the ground that they did not accrue within the time limited by law for the commencement of an action. The defendant M. A. Henry Co., Inc., has made a similar motion. The plaintiff not only opposes the foregoing motions, but seeks leave to serve a second amended complaint, in which there is added a fourth cause of action and, by another motion subsequently served, seeks to add a fifth cause of action and to amend paragraphs 5 and 13 of the first, second, third and proposed fourth causes of action as well as paragraphs 106 and 107 of the said proposed fourth cause of action.

In view of the voluminous papers and memoranda which the respective parties to these motions have prepared and submitted, this court is of the opinion that it should depart from the ordinary practice of not examining and determining the merits or legal sufficiency of the proposed pleading upon a motion for leave to amend. The court feels justified in following the procedure which Mr. Justice KADIEN adopted in Dumbadze v. Agency of Canadian Car & Foundry Co. (38 N. Y. S. 2d 991, 995, affd. sub nom. Gurge v. Agency of Can. Car & Foundry Co., 267 App. Div. 782) where, upon the defendant's motion for summary judgment, the plaintiff cross-moved for leave to amend his complaint so as to set forth two additional causes of action.

The proposed fourth cause of action seeks to impose liability for exemplary damages upon all of the defendants for the conscious pain and suffering of plaintiff's intestate which, it is claimed, resulted from willful, wanton, malicious and unlawful misconduct of said defendants.

The proposed fifth cause of action is based on negligence and seeks damages for wrongful death only from the defendant Woonsocket Falls Mill, which was the manufacturer of the high pile cellulose rayon fabric — a component part of the "Gene Autry" suit here involved. As already pointed out, the plaintiff's intestate died on March 28, 1945, as the result of injuries sustained by him on December 27, 1944. Plaintiff was appointed administrator on March 5, 1948, and process was served upon the defendant Woonsocket Falls Mill on March 16, 1948. Plaintiff contends, however, that the Statute of Limitations has not run against said defendant for the reason that it was a foreign corporation which had neither been licensed nor actually did business within the State of New York so as to bring it within the jurisdiction of its courts.

While conceding that process was served upon the said defendant, which thereafter appeared in the action, plaintiff contends that such appearance was voluntary and that said defendant served its notice of appearance without being aware of the character of the action, since no complaint accompanied the summons, and that it made no motion to vacate the service thereof. In support of his claim that said defendant had not and was not doing business within the State of New York and that, therefore, the Statute of Limitations had not run against the proposed fifth cause of action or, indeed, any cause of action that the plaintiff may allege against it, plaintiff's counsel has submitted certain extracts of testimony from the record in a similar case against the same defendants in the Supreme Court, New York County, in which the defendant Woonsocket Falls Mill contested the service of process claiming that it was not doing business within the State of New York and was not subject to the jurisdiction of its courts. It appears, however, that upon the evidence there adduced there was a determination that this defendant had conducted business within the State with sufficient regularity to justify the service of process and, consequently, the motion to vacate such service was denied. Another case referred to by plaintiff's counsel was one in the United States Court for the Southern District of New York. That case dealt, however, with venue rather than jurisdiction.

In any event, upon the proofs submitted by the defendant Woonsocket Falls Mill, in opposition to the assertion of the proposed fifth cause of action, the court is of the opinion that this defendant was doing business within the State of New York sufficient to bring it within the jurisdiction of its courts, and that a contest of such jurisdiction in this case would have ended in failure, as it did in the case in New York County. Under these circumstances it would be futile to permit the fifth cause of action to be added at this time since it clearly is barred by the Statute of Limitations. The motion with respect thereto is accordingly denied, as is also the request for leave to amend paragraphs 5 and 13 of the first, second, third and proposed fourth causes of action inasmuch as the changes sought therein are unnecessary in light of the foregoing views.

The opposition to plaintiff's motion for leave to add the fourth cause of action is based principally on the claim that it is only a repetition of the third cause of action and its inclusion would accomplish nothing but confusion since it contains 153 paragraphs (91 to 243) besides paragraphs 1 to 26 and 33 to 37 of the first cause of action and paragraphs 57 to 78 and 81 to 85 of the third cause of action, which have been realleged by reference; that many of the added allegations do not meet the test of proper pleading (Civ. Prac. Act, § 241) and could not survive a motion to strike out pursuant to rule 103 of the Rules of Civil Practice; and that in any event the Statute of Limitations would bar this cause of action.

In view of the foregoing claims, it will be necessary to consider at this time the defendants' motion to dismiss the second and third causes of action upon the ground that both are outlawed by the Statute of Limitations.

As has already been stated the second cause of action is in negligence. While an infant injured in an accident has the right to delay any action to recover damages until one year after he has attained the age of twenty-one years (Civ. Prac. Act, § 60), such disability is removed upon the death of the infant, and from that time on the right to maintain an action for personal injuries sustained by him rests with the administrator, who must bring the action either within three years from the date the injuries were sustained or within one year after the cessation of the infant's disability on his death, whichever is the longer period. (Duffy v. E. I. DuPont de Nemours & Co., 193 Misc. 175, affd. 274 App. Div. 908, leave to appeal denied 299 N.Y. 798.) In the case at bar the defendants M. A. Henry Co., Inc., and William E. Roschen, one of the partners of E. F. Timme & Son, were served with process on March 12, 1948, and the defendant Woonsocket Falls Mill on March 16, 1948 — too late under either period of limitation. Plaintiff's counsel seems to concede that the second cause of action is barred as to the defendant M. A. Henry Co., Inc., but urges that as to the other moving defendants the statute was suspended on the grounds urged by him in support of his motion for leave to add the fifth cause of action. There is no merit to this contention as the court has already pointed out. It follows that the motion to dismiss the second cause of action because of the bar of the Statute of Limitations must be granted.

To discuss intelligently the questions presented, it is necessary to consider in some detail the forty-three paragraphs which, together with thirty-two of the thirty-nine paragraphs of the first cause of action, repeated by reference, constitute the third cause of action, the substance of which is as follows: that all of the defendants knew that "Gene Autry" suits would likely be worn by children who might stand near fires; that the suit herein involved and all such suits were purposely designed, manufactured and placed before the purchasing public so that they would resemble attire worn by cowboys, particularly "the well known Gene Autry himself"; that the chaps and pants of such...