Schwartz v. Heyden Newport Chemical Corp.
| Decision Date | 28 March 1963 |
| Citation | 12 N.Y.2d 1073,239 N.Y.S.2d 896 |
| Parties | , 190 N.E.2d 253 Nathan Carl SCHWARTZ, Appellant, v. HEYDEN NEWPORT CHEMICAL CORPORATION and Heyden Chemical Corporation, Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 15 A.D.2d 650, 224 N.Y.S.2d 270.
Action was brought for loss of eye from carcinoma allegedly caused by the injection of defendant's product which was inserted into the plaintiff's sinuses for purpose of making them perceptible on X-rays.
The Supreme Court, Special Term, New York County, Henry Epstein, J., 30 Misc.2d 663, 219 N.Y.S.2d 98, dismissed the action on ground that it was barred by statute of limitations, and the plaintiff appealed.
The Appellate Division, 15 A.D.2d 650, 224 N.Y.S.2d 270, unanimously affirmed the judgment, and the plaintiff appealed.
The Court of Appeals, Burke, J., 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142, affirmed the judgment and held that the action was barred both by six-year statute of limitations applicable to actions for breach of warranty and by three-year statute of limitations applicable to actions for negligence. Desmond, C. J., and Fuld, J., dissented.
Motion was made in the Court of Appeals to amend the remittitur.
Motion to amend the remittitur granted; the return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: appellant contended that the statute of limitations commenced to run in 1947, when he first was able to discover an injury caused by a 1944 injection of a carcinogenic substance, and that a holding by this Court as a matter of law that the actionable injury was sustained prior to that time would deprive appellant of due process of law in violation of the Fourteenth Amendment to the United States Constitution. The Court of Appeals held that in an action for personal injuries caused by negligence the cause of action accrues and the statute of limitations commences to run when the negligence produces injury and that the injury occurred when the harmful substance first acted upon appellant's body at or about the time of injection in 1944, appellant's lack of knowledge notwithstanding.
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