Clarke v. PENNSYLVANIA RAILROAD COMPANY, 244

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 341 F.2d 430
• Docket Number: No. 244,Docket 26157.,244
• Parties: Florence M. CLARKE, Plaintiff-Appellant, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.
• Decision Date: 05 February 1965

341 F.2d 430 (1965)

Florence M. CLARKE, Plaintiff-Appellant,
v.
The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellee.

No. 244, Docket 26157.

United States Court of Appeals Second Circuit.

Submitted December 1, 1964.

Decided February 5, 1965.

341 F.2d 431

Joseph Dean Edwards, New York City (John J. Tomich, New York City, William J. Troy, Seaford, N. Y., John R. Weigel, Newark, N. J., on the brief), for plaintiff-appellant.

Conboy, Hewitt, O'Brien & Boardman, New York City (Thomas V. McMahon, Lawrence W. Middleton, New York City, of counsel), for defendant-appellee.

Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.^*

FRIENDLY, Circuit Judge:

More than ten years after plaintiff's alleged injury by the defendant railroad and seven years after her suit was brought, the one question passed on and now here for review is whether her action was begun eight months too late. We think it was not.

Plaintiff, a New York resident, boarded a Pennsylvania Railroad train in New Brunswick, N. J. for transportation to New York City on September 27, 1954. The injury she allegedly suffered from defendant's negligence took place near Rahway, N. J. She brought suit in the Supreme Court of New York for Kings County on May 22, 1957, within the three year period for actions for personal injury resulting from negligence then provided by § 49, subd. 6 of the N. Y. Civil Practice Act; the Railroad removed to the District Court for the Eastern District of New York by virtue of its Pennsylvania citizenship. There it moved to dismiss on the basis of the first sentence of § 58 of the Railroad Law of New Jersey, codified as N.J.Rev.Stat. tit. 48, § 12-151 (1937), which we quote in the margin.¹ The district judge granted the motion.

Two other New York statutes then in effect are relevant. Section 13 of the N. Y. Civil Practice Act, carried forward in substance as § 202 of the CPLR, provided:

"13. Limitation where cause of action arises outside of the state. Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the cause of action arose, for bringing an action upon the cause of action, except that where the cause of action originally accrued in favor of a resident of this state, the time limited by the laws of this state shall apply. * * *"

And § 55, which finds no exact counterpart in the CPLR, recited that:

"§ 55. Action against nonresident; same limitation as against

341 F.2d 432

resident. Except as provided in section thirteen of this act an action upon any cause of action may be brought in a court of this state within the time limited therefor by the laws of this state, and may not be brought thereafter, and the time limited for bringing a like action by the laws of the place of residence of the person against whom the cause of action arose or by the laws of the place where the cause of action arose, shall not apply."

Anyone reading the "except" clause of § 13 and the final clause of § 55 without the burden of legal knowledge would wonder how New York's legislature could have said more clearly that Mrs. Clarke had three years within which to sue the Railroad in New York even though New Jersey would have dismissed her action unless brought within two. But the issue is not that simple. Story's...