Gaines v. City of New York

• Decision Date: 13 July 1915
• Citation: 109 N.E. 594,215 N.Y. 533
• Parties: GAINES, v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

215 N.Y. 533

109 N.E. 594

GAINES,

v.CITY OF NEW YORK.

Court of Appeals of New York.

July 13, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by David Huyler Gaines against the City of New York. From a judgment of the Appellate Division (156 App.Div. 789, 142 N.Y.Supp. 401) affirming a judgment of the Appellate Term which reversed judgment of the Municipal Court for plaintiff and dismissed the complaint, plaintiff appeals by permission. Affirmed.

See also, 158 App.Div. 880, 142 N.Y.Supp. 1119.

John D. Lannon of New York City, for appellant.

Frank L. Polk, Corp. Counsel (Terrence Farley, of New York City, of counsel), for respondent.

CARDOZO.

In the evening of November 18, 1909, the plaintiff's automobile ran against a steel truss, which divides the carriageway of a bridge in the city of New York. The bridge is part of Gerard avenue, in the borough of the Bronx, and spans a railroad cut between 151st and 153d streets. The evening was dark, there were no lights on the bridge, and a cloud of steam from a passing train settled down on the truss and obscured its presence. The driver of the car, when about 150 feet from the bridge, saw this cloud of steam, which he says he mistook for a fog. He reduced his speed, which was then about 12 miles an hour, to 6 or 8 miles, but drove on into the area of the cloud. His lights under ordinary conditions showed him the road ahead for 1,000 feet. The fog was so dense, however, that he could not even see the radiator of his car. The next thing he knew he had crashed against the granite blocks of the girder. The car was damaged, and the owner brings this action to make good the loss. In the Municipal Court he had a judgment in his favor. The Appellate Term reversed it and dismissed the complaint. An appeal to the Appellate Division followed, and the determination of the Appellate Term was affirmed. Both the Appellate Division and the Appellate Term held, though not without dissent, that the action was barred by the statute of limitations. The Appellate Division also held that the defendant's negligence, if any, was not the proximate cause of the injury to the car.

[1][2] The question of the statutory limitation is the first to be considered. This action was not begun till January 1912. That was too late unless the running of the statute had for some cause been suspended. The ordinary period of limitation in actions for negligence against the city of New York is one year. Greater New York Charter, § 261. The plaintiff says, however, that the running of the statute was suspended. He brought an action for the same cause before the year expired, but brought it in the City Court. That court has no jurisdiction of actions against the city of New York. O'Connor v. City of New York, 191 N.Y. 238, 83 N.E. 979. The earlier action, when it came on for trial in November, 1911, was dismissed upon that ground. The plaintiff asks us, in these circumstances, to apply the rule of limitation laid down in section 405 of the Code of Civil Procedure. It is there said:

“If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”

Both the Appellate Term and the Appellate Division have held that the limitation prescribed by that section does not apply where the first action has been dismissed for the failure of jurisdiction. They have held that such an action is a nullity for all purposes. We do not share that view.

The statute to be construed (Code Div.Pr. § 405) has its roots in the distant past. By the English Limitation Act of 1623 (21 Jac. I, c. 16, § 4) it provided that:

“If in any the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill; or if any of the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry; that in all such cases the party plaintiff, his heirs, executors or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such given against the plaintiff, or outlawry reversed, and not after.”

This section was extended by an equitable construction to cases not strictly within its letter. Swindell v. Bulkeley (1886) 18 Q.B.D. 250. The section was copied into our own laws by a statue enacted in 1788 (L.1788, c. 43) and again in 1801 (1 R.L. p. 186, § 5). It then passed into the Revised Statutes (2 R.S. p. 298. § 33). As thus re-enacted it read:

“If any action shall have been commenced within the times respectively prescribed in the three first articles of this title, and judgment be given therein for the plaintiff, and the same be arrested or reversed on error, the plaintiff may commence a new action, from time to time, within one year after such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may in like manner commence a new action, within the time herein allowed to such plaintiff.”

The substance of that provision was carried forward into the Code of Procedure (section 84). As it was first adopted in that Code it read:

“If an action be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed, on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal.”

There are verbal differences between that section and the corresponding section of the Revised Statutes, but the report of the commissioners shows that the differences are without significance in the determination of the case at hand. The commissioners say in their report:

“This provision is the same as 2 R.S. 396, § 33, except that it provides for the case of a reversal of a judgment only and not for the case of an arrest as in the corresponding provision of the Revised Statutes. The reason of this difference is that, with a view to compel the defendant to avail himself of any objection he may have to the plaintiff's recovery arising upon the fact of the complaint, it is proposed by section 127 to treat his omission to demur or answer as a waiver of the objection, except where it is to the jurisdiction of the court over the subject of the action.”

This statement makes it plain that there was no intent to exclude from the benefit of the section a litigant whose action had been dismissed for lack of jurisdiction. Section 84 of the Code of Procedure was amended in 1863 (L.1863, c. 392). As re-enacted in the present Code (section 405), its scope was broadened. It was made applicable, not only where the judgment in the first action was reversed on appeal, but also to every case where the first action was terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute, or a final judgment upon the merits. We think that, whatever verbal differences exist, the purpose and scope of the present statute are identical in substance with its prototype, the English act of 1623.

That the plaintiff's case is within the letter of the statute is hardly doubtful. He brought an action against the defendant, and the action was terminated otherwise than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute, or a final judgment upon the merits. If the protection of the statute is to be denied to him, it ought to be clearly sown that his case, though within the letter of the statute, is not within its reason. We think that the defendant has been unable to sustain that burden. The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts. When that has been done, a mistaken belief that the court has jurisdiction stands on the same plane as any other mistake of law. Questions of jurisdiction are often obscure and intricate. This very question of the power of the Cit court to determine actions against the city of New York will illustrate that truth. O'Connor v. City of New York, 51 Misc.Rep. 560, 101 N.Y.Supp. 295;Id., 191 N.Y. 238, 83 N.E. 979. There is nothing in the reason of the rule that calls for a distinction between the consequences of error in respect of a suitor's rights.

The defendant argues that an action dismissed for want of jurisdiction is a nullity in the same sense as if it had never been begun at all. But that is an extreme view. Such an action has at least some of the consequences of an action begun in a court of competent jurisdiction. It is the rule in this state that a dismissal for lack of jurisdiction does not strip the court of power to render judgment for the costs. Day v. Sun Ins. Co., 40 App.Div. 305, 57 N.Y.Supp. 1033, affirmed on opinion below 167 N.Y. 543, 60 N.E. 1110;Hempsted v. White Sewing Machine Co., 134 App.Div. 575, 119 N.Y.Supp. 620;O'Connor v. City of New York, supra. For some purposes, therefore, we may speak of an action as...