Crapo v. City of Syracuse

• Decision Date: 23 January 1906
• Citation: 183 N.Y. 395,76 N.E. 465
• Parties: CRAPO v. CITY OF SYRACUSE.*
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 395

76 N.E. 465

CRAPO

v.CITY OF SYRACUSE.*

Court of Appeals of New York.

Jan. 23, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Mary Crapo, administratrix of Henry Crapo, against the city of Syracuse. From an order of the Appellate Division (90 N. Y. Supp. 553,98 App. Div. 376), reversing a judgment in favor of plaintiff and granting a new trial, plaintiff appeals. Reversed.

Vann, Bartlett, and Gray, JJ., dissenting.

Thomas Hogan, for appellant.

Walter W. Magee, for respondent.

CULLEN, C. J.

Though I concur in reversing the order of the Appellate Division and in the affirmance of the judgment of the trial court, I am of opinion that the action is one for personal injuries, within the meaning of chapter 572, p. 801, of the Laws of 1886. Certainly it was an injury to the person of the deceased that gave rise to the cause of action, and it is not necessary to constitute the action one for personal injuries that it should be for injuries to the person of the plaintiff. Unless this is so, neither an action by a husband for injuries to his wife nor by a parent for injuries to a child would fall within the provisions of sections 382 and 383 of the Code of Civil Procedure, and it would follow that, while an action for personal injury must be brought by the wife within 2 years, the husband would have 10 years in which to bring his action for the loss of her services. Section 388. Nor does the fact that the damages in the action given by statute are limited to pecuniary loss affect the question. The same rule obtains to a certain extent, in an action by the husband for the loss of services of his wife, which, so far as pecuniary loss is involved, survives the husband's death and passes to his personal representatives. Cregin v. Brooklyn Crosstown Ry. Co., 75 N. Y. 192, 31 Am. Rep. 459. The case comes plainly within the spirit of the statute, as well as its letter; for every reason for requiring notice of the circumstances of the accident to be given to the municipality applies with as much force to an accident resulting in death as to one where the consequences have been less grave.

I am of opinion, however, that the plaintiff's cause of action did not arise until her appointment as administratrix, for the reason stated by Justice Bradley in Barnes v. City of Brooklyn, 22 App. Div. 520,48 N. Y. Supp. 36, and that therefore the notice required by the statute of 1886 was seasonably served and the action seasonably brought. If the results which follow that construction of the law of 1886 were such as suggested in the dissenting opinion written on this appeal, I think they would constitute a strong objection to that interpretation, but I am of opinion that no such results can follow. The limitations provided in the law of 1886 are not substitutional for the provisions of the Code, which are in no respect repealed, but cumulative. An action for personal injuries against a city of more than 50,000 inhabitants must be brought in compliance, not only with the statute of 1886, but with the provisions of the Code. Section 1902 of the Code requires an action by personal representatives to recover damages for their decedent's death to be brought within two years after that death. This effectually cuts off stale claims. In the present case the action was brought within the Code period.

O'BRIEN, J. (concurring).

The plaintiff recovered a judgment against the defendant for damages in causing the death of her husband and intestate. The Appellate Division has reversed the judgment, as stated in the order, ‘upon questions of law only, the facts having been examined and no error found therein,’ so that every material fact which has some evidence to sustain it is deemed to be established by the verdict and the affirmance on appeal. The intestate was killed while in the service of the defendant by an explosion of dynamite on the 22d of December, 1899. The plaintiff was appointed administratrix on the 8th day of May, 1901. This action was commenced on the 9th day of December, 1901, and the notice required by statute to be served was not filed with the corporation counsel until the 2kth day of June, 1901. It will be seen, therefore, that the statutory notice was filed with the defendant's counsel within 2 months after the plaintiff's appointment as administratrix. The action was commenced within 20 months after the accident and death and within 5 months after letters were issued. The learned court below held that the notice of the plaintiff's claim was served too late and that the action was not commenced in time, and so, for both reasons, the plaintiff's right to commence the action was barred by statute.

All this is deduced from a construction of the statute (chapter 572, p. 801, of the Laws of 1886), which reads as follows: ‘No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employé of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have accrued.’ It will be seen from a careful reading of this statute that it relates only to actions for damages for personal injuries. It will also be seen that the limitation commences to run within six months and one year, respectively, after the cause of action shall have accrued. The learned court below has held that this is an action to recover damages for a personal injury, and also that the limitations commenced to run, not from the time that the plaintiff was appointed administratrix, but from the time of the death of her husband, so that if, for any reason, administration cannot be obtained until more than six months after the death of the intestate, the action is barred and there can be no recovery. I think that both of these propositions are founded upon a legal error and upon an extreme and unwarranted construction of the statute.

This action was unknown to the common law, and is purely a creation of statute. The common law never designated such a case as an action for personal injuries, nor has any statute ever called it by that name, or treated it as such. It is defined by the Code as ‘an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death.’ Code Civ. Proc. § 1902. It requires a good deal of refined and subtle argument to prove that such a case is an action for damages for personal injuries. What person before the court in such cases has sustained an injury which is personal, within the meaning of that term as used in the law? By section 382 of the Code an action for a personal injury may be commenced within six years, and when the injury is caused by negligence within three years. Section 383. In framing these limitations it is plain that the Legislature never supposed that an action such as the one at bar was included in the term ‘personal injury.’ An action for damages for personal injury is an action wherein a living party who is before the court has sustained an injury to his person.

It is equally clear, it seems to me, that the cause of action in this case did not accrue until the appointment of the plaintiff as administratrix. By section 415 of the Code of Civil Procedure it is provided that limitations Must be computed from the time of the accruing of the right to relief by action * * * to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.' This is a plain provision that the right of action does not accrue until some one is in a position to bring and maintain the action, and the limitation must be computed from that time up to the time that the action is actually commenced. The notice which the statute requires to be served within six months after the cause of action has accrued must contain a statement that the party giving the notice intends to commence an action. The absence of such a statement vitiates the notice. Curry v. City of Buffalo, 57 Hun, 25, 10 N. Y. Supp. 392. Who is to give the notice? It is very obvious that, inasmuch as no one can bring such an action except a personal representative of the decedent, the notice must come from him and, of course, he cannot give any such notice until his appointment. A notice served by a stranger, or any one else except a personal representative of the deceased, who alone is entitled to bring the action, would be clearly insufficient, and the defendant could treat it as a nullity. These considerations, that are fairly deduced from a reading of the statute and other statutes in pari materia, point clearly to the conclusion that the cause of action does not accrue until the personal representative of the decedent has been duly appointed.

In the opinion of the learned court below some cases are cited from the courts in this state as in support of a contrary proposition. These cases have been carefully examined, and it is perfectly safe to say that none of them touch the question in this case. In none of them was the question in this case at all involved. One of the authorities cited is a recent decision from this court (Matter of Meekin v. B. H. R. R.Co., 164 N. Y. 145, 58 N. E. 50,...