Hammill v. Curtis

• Decision Date: 28 December 1962
• Parties: Irene HAMMILL, Executrix under the last Will and Testament of William Hammill, deceased, Appellant, v. Frank CURTIS, Respondent, and Vincent Mauself, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 865

235 N.Y.S.2d 865

18 A.D.2d 749

Irene HAMMILL, Executrix under the last Will and Testament

of William Hammill, deceased, Appellant, v. Frank CURTIS, Respondent, and Vincent Mauself, Defendant.

Supreme Court, Appellate Division, Third Department.

Dec. 28, 1962.

Crapser & Kirsch, Vincent F. Kirsch, Massena, for appellant.

Edmund L. Shea, Christopher B. Acker, Ogdensburg, for respondent.

Before BERGAN, P. J., and COON, HERLIHY, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court, St. Lawrence County, denying appellant's motion pursuant to Rule 110 of the Rules of Civil Practice to dismiss a counterclaim contained in the answer on the ground that the counterclaim is barred by the statute of limitations.

This litigation arises out of an automobile accident which occurred on October 12, 1957. The action was commenced by the service of a summons on respondent on June 10, 1958. Respondent promptly filed a notice of appearance but it was not until September 2, 1960 that appellant served his complaint. Respondent on or about May 31, 1961 served an answer which in addition to containing a general denial of the allegations in the complaint asserted a claim denominated 'Defense, Counterclaim and Offset' for property damage arising out of the aforementioned accident. It is conceded that at the time that the answer was served more than 3 years had elapsed from the date of the accident. On June 30, 1961 appellant brought the present motion to dismiss the counterclaim.

There is no question that the period of limitation applicable here is three years (Civil Practice Act, § 49or that the length of the period is uneffected by the fact that the claim is raised as a defense or counterclaim rather than in an independent action (Civil Practice Act, § 61). The sole question is the computation of the period under the circumstances here involved. Periods of limitation are 'computed from the time of the accuring of the right to relief by action, special proceeding, defense or otherwise, as the case requires, 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.' (Civil Practice Act, § 11). Concededly 'the right to relief by action' accrued on October 12, 1957, the date of the accident. Respondent asserts that the counterclaim here involved was 'interposed' within the meaning of § 11 when the summons was served and a general appearance filed. Such is not the law in this State. The action is commenced and the counterclaim interposed only when the answer containing the counterclaim is served (Cooley Trading Co. v. Goetz, 273 N.Y. 488, 6 N.E.2d 417; Garben v. McKittrick, 225 App.Div....