Smalley v. Hutcheon

• Citation: 296 N.Y. 68,70 N.E.2d 161
• Court: New York Court of Appeals
• Decision Date: 14 November 1946
• Parties: SMALLEY et al. v. HUTCHEON.

296 N.Y. 68
70 N.E.2d 161

SMALLEY et al.
v.
HUTCHEON.

Court of Appeals of New York.

Nov. 14, 1946.

Appeal from Supreme Court, Appeallte Division; Second Department.

Action by Clarence E. Smalley and another against Forbes G. Hutcheon, as administrator of the estate of Bertha Hutcheon, deceased, for damages suffered in automobile collision. Judgments for plaintiffs, Coyne, J., 59 N.Y.S.2d 259, were affirmed by a divided court by the Appellate Division of the Supreme Court on July 17, 1946, 270 App.Div. 1053, 63 N.Y.S.2d 378, and the defendant appeals.

Judgments reversed, and complaint dismissed.

[70 N.E.2d 161]

H. M. Brown, Raymond J. Scully, and E. C. Sherwood, all of New York City, for appellant.

Sydney A. Syme, of White Plains, for respondents.

THACHER, Judge.

This is an action by a husband and wife to recover from the administrator of a decent damages suffered by them when the automobile in which they were riding came into collision, on one of the highways of the State of Illinois, with a motor car driven by the defendant's intestate. Judgments upon verdicts of the jury in favor of the plaintiffs were affirmed below and are brought here for review by the defendant administrator, whose only contention is that the action is barred by the Statute of Limitations.

The accident occurred on September 29, 1941, and defendant's intestate died a few hours thereafter. Letters of administration upon her estate were issued to the defendant by the Surrogate of Queens County in the State of New York where she resided at the time of her death. On July 24, 1942, less than a year after the accident occurred, plaintiffs filed a complaint in an action against Forbes G. Hutcheon, as administrator of Bertha Hutcheon, deceased, and caused a summons to be issued in the Circuit Court of Illinois and delivered to the Secretary of State of Illinois. This, it is claimed, was authorized by section 20-a of the Motor Vehicle Law of that State, Ill.Rev.Stat. ch. 95 1/2, s 23. Under this Illinois statute, which is similar to section 52 of the Vehicle and Traffic Law of New York, Consol.Laws, c. 71, the operation of a motor vehicle over the highways of that State by a nonresident is given legal effect as an appointment of the Secretary of State to act as attorney for the acceptance of service of legal process in any action against the operator arising out of the operation of a motor car within the State.

[70 N.E.2d 162]

The statute requires service of the process upon the secretary, together...