Johnson v. Stromberg Carlson Tel. Mfg. Co.

• Decision Date: 04 January 1938
• Citation: 276 N.Y. 621,12 N.E.2d 607
• Parties: Ellen JOHNSON, Appellant, v. STROMBERG CARLSON TELEPHONE MFG. CO., Respondent.
• Court: New York Court of Appeals Court of Appeals

276 N.Y. 621

12 N.E.2d 607

Ellen JOHNSON, Appellant,

v.STROMBERG CARLSON TELEPHONE MFG. CO., Respondent.

Court of Appeals of New York.

Jan. 4, 1938.

Action by Ellen Johnson, as administratrix of the estate of John Johnson, deceased, against the Stromberg Carlson Telephone Manufacturing Company. The action was commenced March 17, 1936, to recover damages for the death of plaintiff's intestate from silicosis which is alleged to have been caused by defendant's failure to comply with provisions of the Labor Law, § 299, Consol.Laws, c. 31, requiring the installation and use of ventilating devices in its factory where the decedent was formerly employed. The complaint purports to state a single cause of action for an alleged breach of statutory duty, as to which the six year statute of limitations, Civil Practice Act, § 48, subd. 2, is a bar. The last day of decedent's employment by defendant was April 16, 1929, and his death occurred February 3, 1936, after an interval of more than six years.

The defendant conceded that the cause of action might be preserved to decedent's estate if there was pending undertermined at the time of his death a similar suit brought by him against defendant within six years after the alleged wrong, and in which a breach of statutory duty was alleged. The plaintiff pleaded the pendency of such an action which was commenced July 5, 1933. The complaint in that action alleged a cause of action in negligence which was barred by the three year statute of limitations, Civil Practice Act, § 49, subd. 6. It also contained allegations which purported to set forth a cause of action for nuisance. The complaint failed to allege a cause of action for breach of statutory duty.

The Special Term denied defendant's motion to dismiss the complaint on the ground that the action was not brought within the time required by section 48 of the Civil Practice Act. The Appellate Division, 250 App.Div. 352, 294 N.Y.S. 173, reversed the order of the Special Term on the ground that the complaint filed in 1933 alleged only a cause of action in negligence which was barred three years after it accrued and before that action was commenced, and that at the time of the death of plaintiff's intestate, no action was pending undetermined which had been brought by decedent against defendant within six years after the alleged wrong, and hence the cause of action for breach of statutory duty was not preserved to the estate of decedent, but was barred...