Tesoriero v. Erie R. Co., 14085.

• Decision Date: 30 April 1934
• Docket Number: No. 14085.,14085.
• Citation: 6 F. Supp. 815
• Parties: TESORIERO v. ERIE R. CO.
• Court: U.S. District Court — Eastern District of New York

6 F. Supp. 815

TESORIERO v. ERIE R. CO.

No. 14085.

District Court, E. D. New York.

April 30, 1934.

Horace M. Gray, of New York City, for libelant.

Davis, Polk, Wardwell, Gardiner & Reed, of New York City, for respondent.

BYERS, District Judge.

The respondent in an admiralty cause in personam moves for judgment, in a death case, because the libel shows that it was not filed within two years from the decedent's death, which occurred on May 12, 1926. The libel was filed on or about January 24, 1934.

Section 130 of the New York Decedent Estate Law (Consol. Laws N. Y. c. 13) provides that the personal representative of a decedent who is survived by a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default by which the decedent's death was caused, which action must be commenced within two years after that death.

Such a limitation is enforced where the proceeding is brought in admiralty. Western Fuel Co. v. Garcia, 257 U. S. 233, 42 S. Ct. 89, 66 L. Ed. 210.

The libelant would avoid the application of that rule by pointing to an action she began in the New York Supreme Court promptly upon her appointment as administratrix, which was dismissed September 15, 1932, under a rule of that court, having been marked "Off calendar" on May 11, 1928 — apparently for failure to prosecute or appear on the calendar call.

That default is explained as having been due to inability to learn of any witness who could aid the cause. It is said that, in May of 1933, such a witness was brought to light, and consequently this cause was instituted.

It is argued that the cause in the state court must be regarded as subsisting, because, by section 108 of the Civil Practice Act, the state court may, in its discretion and upon terms, relieve the plaintiff from the order of dismissal; that the existence of such power in effect proves that the alleged cause of action is still alive under the state statute, and hence this court, in the exercise of discretion, may "overrule the respondent's claim of laches."

The error in this reasoning is that the respondent pleads, in article 5 of the answer, not laches, but that the cause of action accrued on May 12, 1926, and that this libel was not filed within the time permitted for the bringing of the action within the said provisions of the Decedent Estate Law. The issue, therefore, is one of limitation, not laches.

Again, the possibility of resuscitation of the state court suit...