Robinson v. Robins Dry Dock & Repair Co.

• Citation: 144 N.E. 579,238 N.Y. 271
• Parties: ROBINSON v. ROBINS DRY DOCK & REPAIR CO. et al.
• Decision Date: 20 May 1924
• Court: New York Court of Appeals

238 N.Y. 271

144 N.E. 579

ROBINSON

v.ROBINS DRY DOCK & REPAIR CO. et al.

Court of Appeals of New York.

May 20, 1924.

Action by Marion L. Robinson, as administratrix of the goods, chattels, and credits of George Robinson, deceased, against the Robins Dry Dock & Repair Company and the Standard Transportation Company. Judgment of Special Term, granting defendants' motion for judgment of pleadings, was affirmed on appeal by the Appellate Division (204 App. Div. 578,198 N. Y. Supp. 99), and plaintiff appeals.

Reversed, and motion for judgment on pleadings denied.

Hiscock, C. J., and McLaughlin and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Thomas J. O'Neill, Leonard F. Fish, and Patrick J. McMahon, all of New York City, for appellant.

Paul Koch, for Robins Dry Dock & Repair Co.

Peter M. Speer, Percy J. King, and Courtland Palmer, all of New York City, for defendant Standard Transportation Co.

LEHMAN, J.

The plaintiff's intestate was killed while working as an employee of the defendant Robins Dry Dock & Repair Company on May 20, 1918. In December, 1920, this plaintiff began this action alleging in her complaint that the death of the intestate was caused by the negligence of both defendants. Both defendants pleaded as an affirmative defense that the action was not commenced within two years after the death of plaintiff's intestate. The plaintiff in reply to this defense pleaded that after the death of the intestate she applied for compensation under the Workmen's Compensation Act, and she procured such compensation until October 15, 1920, when the payment of compensation was terminated by order of the State Industrial Commission after the Supreme Court of the United States had rendered a decision that the Workmen's Compensation Law of the State of New York ‘did not apply to a person employed as this plaintiff's intestate was.’ The defendants moved for judgment on the pleadings dismissing the complaint on the ground that the reply is insufficient in law. The defendants' motion was granted, and the order granting the motion has been affirmed by the Appellate Division.

Section 1902 of the Code of Civil Procedure provided that an action by an executor or administrator of a decedent to recover damages for a wrongful act, neglect or default by which the decedent's death was caused ‘must be commenced within two years after the decedent's death.’ The present action was begun more than two and a half years after the decedent's death and was, therefore, barred unless part of this period may under some rule of law be excluded from the time limited for the commencement of the action. At the time of the death of the plaintiff's intestate the Workmen's Compensation Act (Consol. Laws, c. 67) in form covered injuries even in cases which like the present case, would otherwise come under admiralty or maritime jurisdiction. In October, 1917, the Congress of the United States, apparently for the purpose of meeting the objection pointed out in the case of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451 Ann. Cas. 1917 E, 900, that the separate states had no power to create a new form of liability in such cases, amended the United States Judicial Code by inserting what was in effect a delegation of such power to the states. Upon the assumption that the Workmen's Compensation Act gave her a right to compensation for her husband's death the plaintiff applied for such compensation; upon the same assumption the State Industrial Commission made an award to her. All the courts of this state upheld the right to compensation of a claimant under similar circumstances, but their decisions were overruled by the Supreme Court in the case of Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, which held this attempted amendment unconstitutional. This decision was rendered too late to enable the plaintiff to begin her action within the time limited by the statute.

[1] The courts below have decided that, although this plaintiff failed to bring her action within the time limited because an alternative remedy, which as against the employer was exclusive, was apparently granted to her by a statute enacted by the Legislature of this state with the consent of the Congress of the United States and declared constitutional and effective by the Court of Appeals of this state, yet the courts are powerless to afford her any relief if under the express terms of the statute the action is now barred. We are compelled to agree with this conclusion. The Legislature has created the plaintiff's cause of action, and it has expressly limited the time during which it may be brought. The courts can no more create a new limitation or waive the legislative limitation for the plaintiff's benefit than they could create a new cause of action for her. Reliance upon a statute which has been declared unconstitutional by the court of final authority can result in no new legal rights. The only question which the courts below could consider was whether from the language of the Code itself any legislative intent may be gathered to exclude, from the time limited for the commencement of the action, the period during which a statute conferring an alternative remedy which was exclusive against the employer was held to be valid by the courts of this state. Section 406 of the Code of Civil Procedure provided that--

‘Where the commencement of an action has been stayed by * * * order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action.’

To hold that under the circumstances here disclosed the present action has ever been ‘stayed’ by an order of a court or by statutory prohibition within the meaning of the Code provision would probably stretch its language far beyond the legislative intent.

The fact that the courts can afford no relief to this plaintiff and to others who may be similarly situated seems to have spurred the Legislature to come to their relief, for in May, 1923, after the Appellate Division had rendered its decision herein the Legislature enacted a new section (23-a) to the Civil Practice Act (chapter 392 of the Laws of 1923) which provides that in a case like the present a plaintiff may commence an action after the time limited by general or special laws ‘and within one year after this act goes into effect,’ and we must upon this appeal consider not merely whether the decision of the courts below was correct when rendered, but also the effect of this action by the Legislature upon the plaintiff's rights.

[2] The statute was enacted solely for the purpose of enabling a party to bring an action when, without such statute, lapse of time would furnish a complete defense. It results, therefore, in depriving the defendant of a valid defense. In the recent case of Hopkins v. Lincoln Trust Co., 233 N. Y. 213, 135 N. E. 267, this court has pointed out that the power to revive a right of action already barred has been upheld in some jurisdictions and denied or doubted in others, while on our own state there are conflicting dicta. The conflicting grounds of decision are set forth in the prevailing opinion of Mr. Justice Miller and the dissenting opinion of Mr. Justice Bradley in Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. In that case it was held that the Legislature may repeal a statute of limitation of actions on personal debts even where the right of action is already barred, without depriving a debtor of his property in violation of the Fourteenth Amendment of the Constitution of the United States. The decisions of some state courts furnished strong and possibly preponderating authority against this conclusion, but upon this appeal we need not decide which line of authority the courts of this state should eventually follow, for the exercise of the legislative power may be upheld in this case upon grounds which are applicable even if the general power to revive a cause of action for personal debts or a cause of action for tort is doubted or denied.

In the case of Danforth v. Groton Water Co., 178 Mass. 472, 59 N. E. 1033,86 Am. St. Rep. 495, the court had under consideration a state of facts in some respects similar to the state of facts involved here. In that case the defendant water company had been incorporated under a charter which gave it the right to enter upon the lands of others and provided for compensation to be paid to the owners of such lands after assessment of damages ‘in the manner provided by law when land is taken for the laying out of highways.’ Such assessment was to be made ‘on application at any time within one year from the taking of such land or other property under the...