278 A.D. 894 | N.Y. App. Div. | 1951
Order reversed on the law, with $10 costs and disbursements, and motion for a dismissal of plaintiff’s complaint granted, with $10 costs. Memorandum: The plaintiff on December 29, 1930, commenced an action .for goods sold and delivered against Grace Wixson Newland, doing business as Genesee Valley Poultry Farm. She died in 1935 before any judgment was entered. On August 11, 1949, plaintiff entered judgment against Thomas W. Slaight, as administrator of said Newland. The present action, upon the same demand was commenced in December, 1950, against the defendant, L. H. Robinson, “as surviving partner with Grace Wixson Newland, engaged in business under the firm name of Genesee Poultry Farm ”. The assumed name in the Newland action and in the present action is not the same. Defendant moved to dismiss the complaint on the grounds (1) that there is an existing final judgment determining the same cause of action between the parties and (2) that the Statute of Limitations bars the action. The defendant appeals from an order of Special Term which denied the motion. We think the motion should have been granted. The Statute of Limitations has long run against the demand unless, as plaintiff contends, this is a new action under section 1201 of the Civil Practice Act (see Hofferberth v. Nash, 191 N. Y. 446), which did not accrue until there was an unsatisfied judgment against Newland. Since the 1930 action against Newland was not one “ upon a joint obligation, contract or liability ” but was one alleging an individual liability only against Newland, section 1201 of the Civil Practice Act has no applicability. Moreover, it is our opinion that the judgment dismissing the complaint in an action between
