Terwilliger v. Terwilliger

• Decision Date: 25 April 1951
• Citation: 201 Misc. 453
• Parties: Otis Terwilliger, as Administrator of The Estate of Alida Terwilliger, Deceased, Plaintiff,<BR>v.<BR>Frank V. Terwilliger, Defendant.
• Court: New York Supreme Court

201 Misc. 453

Otis Terwilliger, as Administrator of The Estate of Alida Terwilliger, Deceased, Plaintiff,

v.Frank V. Terwilliger, Defendant.

April 25, 1951.

Cook & Cook for defendant.

Napoletano, Kelly & Saccoman for plaintiff.

MacAFFER, J.

The defendant moves to dismiss the complaint under subdivision 9 of rule 107 of the Rules of Civil Practice. The ground there set forth is "that the cause of action did not accrue against the defendant because of his infancy or other disability."

Plaintiff at the outset resists the motion as not being timely brought within the twenty days provided by the rule. The defendant counters with the contention that his attorney asked for and obtained from plaintiff's attorney extensions of time. Plaintiff's attorney insists that such extensions were extensions of time to answer only and were not extensions of time to move against the complaint. The communications between the attorneys on this score apparently were made orally and loosely phrased. Plaintiff's attorney, however, on the argument of the motion stated that he had no desire to avoid any stipulation because it was oral. Also on the argument of the motion, plaintiff's attorney conceded that no specific limitation was imposed on the extensions of time. In this judicial district it is the court's understanding of the practice that unless specifically limited an extension of time to answer includes an extension of time to move against the complaint. The court, therefore, would be inclined to hold that defendant's time to make this motion had been extended. However, it is unnecessary to determine the issue on that ground alone as the court has the power to enlarge defendant's time to make this motion. (Civ. Prac. Act, § 98; Fiorello v. New York Prot. Episcopal City Mission Soc., 217 App. Div. 510; Lloyd v. Hogan & Sons, Inc., 128 Misc. 665; Hartmann v. American Mercury, 57 N. Y. S. 2d 791.) Accordingly, in view of the indefiniteness of the stipulation between the attorneys this court excuses defendant's failure to sooner make this motion and the court will consider the motion on the merits.

The complaint herein alleges that on the 21st day of July, 1949, the plaintiff's intestate, while a passenger in the automobile operated by the defendant and as a result of the accident in which the automobile was involved, received personal injuries from which she later died. The moving papers disclose that the plaintiff's intestate was the mother of the defendant. The defendant on this motion proffers his affidavit setting forth certain facts from which he asks the court to conclude that he was an unemancipated infant at the time of the accident and not therefore subject to liability for any negligence which may have caused injury to and the death of his mother. (Boehm v. Gridley & Sons, 187 Misc. 113.)

The plaintiff presents no affidavit denying the matters set forth in the defendant's affidavit. The allegations of defendant's affidavit, therefore, must be accepted by the court on this motion as correctly setting forth the factual situation. The plaintiff relies on the contention that the defendant's affidavit cannot be considered on this motion as it purports to relate to personal transactions of the defendant with the deceased parents of the defendant, and to give consideration to such allegations would be violative of the provisions of section 347 of the Civil Practice Act.

The prohibition of section 347 of the Civil Practice Act precluding testimony of the party interested in the event with respect to personal transactions with a decedent apparently relates only to testimony given on a trial. The statute specifically so provides. Such a prohibition does not appear to extend to preliminary proceedings prior to a trial. (Matter of Van Volkenburgh, 254 N.Y. 139, 143-144; Lemlich v. Lemlich, 266 App. Div. 748; Matter of Caldwell, 186 Misc. 60, 62; Matter of Tow, 93 N. Y. S. 2d 899, 900.)

The question presented by plaintiff's contention appears to be without precedent so far as research of the adjudicated cases discloses. Clearly, if such allegations are of evidence not violative of the statute, no problem is presented. Similarly, if such allegations are of testimony prohibited by the statute, a novel problem must be settled. The averments of the defendant's affidavit do not easily and clearly fall completely into...