Buyers v. Buffalo Paint & Specialties

• Decision Date: 14 August 1950
• Citation: Buyers v. Buffalo Paint & Specialties, 99 N.Y.S.2d 713, 199 Misc. 764 (N.Y. Sup. Ct. 1950)
• Parties: Albert E. Buyers et al., Plaintiffs,<BR>v.<BR>Buffalo Paint and Specialties, Inc., et al., Defendants.
• Court: New York Supreme Court

199 Misc. 764

Albert E. Buyers et al., Plaintiffs,

v.Buffalo Paint and Specialties, Inc., et al., Defendants.

August 14, 1950.

Harry L. Abt and James O. Moore for Amherst Builders Supply & Coal Corporation, defendant.

William J. Brock and Joseph H. Chirlin for plaintiffs.

HALPERN, J.

This action was brought to recover for the injury suffered by the plaintiffs on March 28, 1946, when their premises were damaged by fire. The complaint alleges two causes of action, the first, in contract and the second, in tort for negligence.

The first cause of action alleges that the defendant Amherst Builders Supply & Coal Corporation (hereinafter referred to as Amherst) sold the plaintiffs a waterproofing material known as "Ruf-Kote", designed to be used as a coating for roofs and floors. It is alleged that the defendant Amherst warranted "Ruf-Kote" to be fit for the purpose for which it was intended and specifically warranted that it contained no coal tar. It is further alleged that it is necessary and customary to apply heat to products of this character in preparing them for application, and that when this was done in the usual and customary manner, the product ignited and exploded, causing the fire which damaged the plaintiffs' buildings. The damage is alleged to have been due to a breach of the defendant Amherst's warranty. It is alleged that, contrary to the terms of the warranty, "Ruf-Kote" contained dangerous, inflammable and explosive materials which rendered it unsafe and dangerous for use for the purpose for which it was intended.

The second cause of action states substantially the same facts and adds that the defendant Buffalo Paint and Specialties, Inc. manufactured the product known as "Ruf-Kote" and sold it to the defendant Amherst which in turn sold it to the plaintiffs. It is alleged that both defendants knew, or should have known, of the dangerous and inflammable nature of Ruf-Kote and should have given warning thereof. Recovery is sought against both defendants on the ground of negligence.

The action was instituted by the service of a summons upon the defendant Buffalo Paint and Specialties, Inc. within three years after the date of the fire. However, the summons was served upon the defendant Amherst on March 29, 1949, which was one day after the expiration of three years from the date of the occurrence.

The defendant Amherst moved to dismiss the complaint upon the ground that both causes of action were barred by the three-year Statute of Limitations (Civ. Prac. Act, § 49, subd. 7). It was conceded, upon the argument that the second cause of action is barred, but the plaintiffs insist that the first cause of action is governed by the six-year Statute of Limitations (Civ. Prac. Act, § 48, subd. 1) as an action in contract.

The question here presented is a novel one. It grows out of the fact that by chapter 558 of the Laws of 1936, sections 48 and 49 were amended so as to reduce the period for the bringing of an action for damages for an injury to property from six years to three years. Formerly, such an action was maintainable within six years after the accrual of the cause of action and since this period was identical with the period provided for contracts not under seal, no occasion arose for drawing a distinction between an action on a simple contract and an action to recover damages for an injury to property.

It will be noted that the statute does not draw a distinction in terms between actions in contract and actions in tort. The three-year statute is in terms applicable to actions "for damages for an injury to property". It does not matter whether the action is brought in contract or in tort.

"The form of the action, whether ex contractu, as claimed to be the case here by appellant's counsel, or ex delicto, does not affect the case under this statute". (Webber v. Herkimer & Mohawk St. R. R. Co., 109 N.Y. 311, 314.)

"Our ruling is not to rest on the term to be given the cause of action under common-law nomenclature, whether ex delicto or ex contractu * * * if the `gravamen of the action and foundation of the claim' are `to recover damages for a personal injury resulting from negligence' (See Civ. Prac. Act, § 49, subd. 6) [it is necessary] to enforce the statutory prescription against the maintenance of the action, whether in form it be brought ex contractu or ex delicto." (Hermes v. Westchester Racing Assn., 213 App. Div. 147, 148.)

"[I]n applying the Statute of Limitations we look for the reality, and the essence of the action and not its mere name." (Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264.)

In deciding whether the statute with respect to injury to property is applicable, "not the origin of the liability, but the character of the loss" is determinative (Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 132 F.2d 766, 768, rehearing denied 134 F.2d 1022, certiorari denied 320 U. S. 749).

If the action is essentially one to recover damages for an injury to property, the three-year statute is applicable, even though the legal duty which is alleged to have been breached had its origin in a contract. It is true that under such circumstances, the plaintiff may, at his option, sue either in contract or in tort. For example, he may bring his action in a court which has jurisdiction only over contract actions (Busch v. Interborough Rapid Tr. Co., 187 N.Y. 388) but, for the purpose of prescribing the period of limitation, the statute cuts across the distinction between tort and contract, and subjects all actions for injury to property to a three-year period of limitation.

There can be no question but that this is an action for "damages for injury to property", as that term is commonly understood. It is an action for consequential damages to property alleged to have resulted from a breach of warranty. It is not an action merely for restitution of the contract price, nor is it an action for money had and received, to which the six-year contract statute might apply.^[*] Neither is it an action for expenses paid or incurred in misreliance upon the contractual promise, to which the six-year statute has been held to be applicable (Conklin v. Draper, 229 App. Div. 227, affd. on another point, 254 N.Y. 620).

A question similar to the one here presented has frequently arisen with respect to actions for personal injuries. Actions for personal injury (other than the intentional torts, assault, battery, defamation, and the like, which are subject to the one-year and two-year statutes) are generally governed by the six-year Statute of Limitations (Civ. Prac. Act, § 48, subd. 3) but an action for damages for personal injury resulting from negligence must be brought within three years (Civ. Prac. Act, § 49, subd. 6).

Plaintiffs in personal injury negligence actions have repeatedly sought to avoid the effect of the three-year Statute of Limitations by bringing their actions in contract, alleging that the defendant's failure to exercise care constituted the breach of a contract between the parties. In every instance, the attempt to bring the case within the six-year statute applicable to contract actions has been rejected (Webber v. Herkimer & Mohawk St. R. R. Co., supra; Hermes v. Westchester Racing Assn., supra; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, affd. 287 N.Y. 670). In each of these cases, the court held that the action was one for personal injury resulting from negligence within the meaning of the Statute of Limitations, even though the theory of the complaint was that the defendant had breached a contract requiring him to exercise care.

It may well be that in a case in which the contract imposed an absolute duty and not merely a duty to exercise care, the six-year Statute of Limitations applying to actions for injuries to person due to causes other than negligence would govern (Civ. Prac. Act, § 48, subd. 3). Thus, if it were alleged that a personal injury was due to a breach of warranty under which the warrantor in effect insured the safety or effectiveness of his product, it may well be that the six-year statute would be applicable (Niehaus v. Caryfield, Inc., 240 App. Div. 144, but see Schlick v. New York Dugan Bros., 175 Misc. 182, holding that the three-year statute for negligence actions is nevertheless applicable, criticized in 54 Harv. L. Rev. 516; cf. Schmidt v. Merchants Despatch Transp. Corp., 270 N.Y. 287^[*]). However, even if it were assumed that such an action was subject to a six-year period of limitation, the six-year period would be the one found in subdivision 3 of section 48 dealing with actions for unintentional personal injury due to causes other than negligence rather than the contract provision contained in subdivision 1 of section 48. The action would still be one for personal injuries, notwithstanding the fact that the action might have been brought in contract.

In this connection, it should be borne in mind that there is no statutory provision for a six-year period for actions for property damage due to causes other than negligence. Subdivision 7 of section 49 is all embracing and applies to all actions to recover damages for injury to property, whether the wrong charged against the defendant consisted of a breach of a duty to exercise care or the breach of a duty of an absolute character.

The majority view prevailing in other jurisdictions with respect to actions for personal injuries is in accord with the New York cases. The cases are collected in two annotations (1 A. L. R. 1313 and 157 A. L. R. 763).

I believe that the principle laid down in the personal injury negligence cases is controlling here. The courts there held that an action for a breach of contract resulting in personal injuries was an action for personal injuries within the meaning of the Statute of Limitations. It must likewise be held here that an action for consequential damages to property, whether the action is brought in contract or in tort, is an action for injury to property within...