King v. Killum

• Decision Date: 17 April 1963
• Citation: 39 Misc.2d 48,239 N.Y.S.2d 1013
• Court: New York City Court
• Parties: Olga KING and Joseph King, Plaintiffs, v. James E. KILLUM and Barry T. Fox, Defendants.

Page 1013

239 N.Y.S.2d 1013

39 Misc.2d 48

Olga KING and Joseph King, Plaintiffs, v. James E. KILLUM and Barry T. Fox, Defendants.

Civil Court of the City of New York, Special Term, New York County, Part I.

April 17, 1963.

Schneider & Marcus, New York City, for plaintiffs.

Christensen, Asch & Condon, New York City, for defendant Fox.

SIDNEY GOLD, Judge.

Defendant Fox moves to dismiss the complaint pursuant to Rule 107 subdiv. 5, R.C.P.

The cause of action for negligence arose in January, 1959. The Secretary of State was served in October, 1962 pursuant to section 253, Vehicle and Traffic Law.

The only issue is whether section 19, C.P.A. tolled the statute of limitations.

Section 19, C.P.A. reads in part as follows:

'* * * But this section does not apply in either of the following cases:

'1. While a designation or appointment, voluntary or involuntary, made in pursuance of law, of a resident or nonresident person, * * * on whom a summons may be served within the state for another resident or nonresident person * * * with the same legal force and validity as if served personally on such person * * * within the state, remains in force' (Emphasis supplied).

In Maguire v. Yellow Taxi Corporation, 253 App.Div. 249, 1 N.Y.S.2d 749, aff'd without opinion 278 N.Y. 576, 16 N.E.2d 110, decided in 1938 and cited by plaintiffs, the court specifically stated the following at p. 252, at p. 752 of 1 N.Y.S.2d:

'The involuntary appointment by a nonresident of the secretary of state as a person upon whom the summons may be served, thus provided by our statute, is not, in our opinion, a designation made in pursuance of law of a resident of the State, for the designation referred to in section 19 of the Civil Practice Act is a voluntary one and does not include the involuntary appointment which the Vehicle and Traffic Law provides' (Emphasis supplied).

The present section 19, C.P.A., quoted heretofore, does include involuntary appointment. Therefore, the Maguire case, supra, does not apply (see Fuller v. Stuart, 3 Misc.2d 456, 153 N.Y.S.2d 188; Caruso v. Bard, 20 Misc.2d 887, 194 N.Y.S.2d 535; Guastella v. Reichenback, 208 Misc. 887, 145 N.Y.S.2d 696; Maryland Casualty Co. v. Draney, 2 Misc.2d 637, 155 N.Y.S.2d 845).

In the Law Revision Commission Report of 1943 referring to the present section 19, C.P.A. which was passed in 1943, the Commission stated the following at p. 132:

'(c) The third sentence, stating situations where the tolling provisions of the section do not apply, is amended to include cases where the defendant, nonresident or otherwise, absent from the state, is deemed by law to have appointed an officer of the state or some other person as agent to receive service of process upon him equivalent to personal service. The present section is stated expressly to be inapplicable while a designation made in pursuance of law of a resident of the state on whom summons may be served, remains in force. ...