142 N.Y.S. 401 | N.Y. App. Div. | 1913
Lead Opinion
On the evening of the 28th day of November, 1909, at about seven-thirty o’clock, the plaintiff’s automobile, which was being
The Appellate' Term reversed the judgment on the ground that, the Statute of Limitations was a bar to the action. (Gaines v. City of New York, 78 Misc. Rep. 126.) Section 261 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 677; since amd. by " Laws of 1912, chap. 452) provides, among other things, that no action for negligence shall be maintained against the city “unless such action shall be commenced within.one year after the cause of action therefor shall have accrued.” This action was not commenced until the 26th day of Jan- . uary, 1912; but the plaintiff relies upon the commencement and- pendency of a former action and section 405 of the Code of Civil Procedure to except his case from the operation of the one-year Statute of Limitations. That section is as follows: “If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in. any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”
The plaintiff, evidently with a view to anticipating the plea of the Statute of Limitations, alleged that he commenced an action in the City Court of the city of New York on the 23d .day of November, 1910, against the defendant on the same cause of action as that alleged in the complaint herein; that defendant appeared therein, and the cause was placed upon the calendar and moved for trial, whereupon defendant moved to dismiss the complaint on the ground that the court did not have jurisdiction of the cause of action, and the complaint was
The city by its answer duly pleaded this Statute of Limitations, but the record does not show that it moved to dismiss the complaint upon that ground or otherwise raised the questions on the trial, and counsel for the plaintiff insists that, there
The bridge was forty feet wide and was supported by three trusses, each surmounted by a steel girder two and a half feet in width, resting at each end on a granite block extending about one foot above the roadbed, and curving upward to a height of about eight feet midway between the ends of the trusses. One of these trusses was at either side of the bridge and the othér was in the middle, dividing the roadbed into two carriageways each about fifteen feet wide.
It is not contended that the city was negligent in thus constructing the bridge with the girder and truss in the middle of the carriageway,' and, doubtless, the authorities relieving a municipality for an error in judgment with respect to the plan under which a local improvement is made (See Urquhart v. City of Ogdensburg, 91 N. Y. 67; Owen v. City of New York, 141 App. Div. 217, 221), would exonerate the city from liability for thus constructing the bridge. The theory of the action is, that the city having so constructed the bridge that it formed ah obstruction in the middle of the carriageway, it was its duty to light it at night in order to give notice of the existence of the obstruction to those lawfully using the highway. We are of opinion that in the circumstances such duty did devolve upon the city. (Corcoran v. City of New York, 188 N. Y. 181.)
The evidence does not show, however, that the failure of the defendant to light the bridge was the proximate cause of the accident. Although there was no light on the bridge, or street.
In view of this evidence it cannot be said that the failure of the city to light the bridge was the proximate cause of the accident, or that if the bridge had been lighted the chauffeur would have been able to see the granite block and girder and to avoid colliding therewith.
McLaughlin and Clarke, JJ., concurred; Scott, J., concurred on the ground that the Statute of Limitations is a bar.
Concurrence Opinion
I do not concur with Mr. Justice Laughlin that the Statute of Limitations is a bar to this action. The former action was commenced in the City Court, a court of record, and that action was finally dismissed on the ground that the City Court had no jurisdiction in an action against the. city of New York. This action was commenced within one year after the termination of that action and I think it is expressly within the provisions of section 405 of the Code of Civil Procedure. There is no exception in that section which excludes from its provisions an action brought in a court having no jurisdiction, but the section provides that “if an action is commenced within the time limited therefor * * ■ * the plaintiff * * * may commence a new action for the" same cause after the expiration of time so limited,” and this action was brought within one year after such action was terminated. The plaintiff sought to enforce his cause of action by. commencing an action in the City Court. He was mistaken in supposing, that that court had power to award him a judgment, but it seems to me that the provision of this section 405 of the Code of Civil Procedure was for the express purpose of providing for such a case so that a person having made such a mistake should not lose his right to enforcehis cause of action by reason of the Statute of Limitations, but should be given an opportunity to commence an action in; the proper court which had jurisdiction to afford him relief.
I concur, however, with Mr. Justice Laughlin on the sécond ground stated by him — that the failure of the city to light the approach was not the proximate cause of the accident, and, therefore, concur in the affirmance of the Appellate Term.
Determination affirmed, with costs.