9 A.D.2d 1014 | N.Y. App. Div. | 1959
Order affirmed, without costs of this appeal to any party. Memorandum: Plaintiff’s husband died as a result of an accident which occurred in Pennsylvania on September 20, 1955. He was survived by plaintiff and by one son, both of whom were infants and residents of New York State at the time of the accident. This death action was commenced by plaintiff in an individual capacity on or about July 31, 1958. The defendants moved under rule 107 of the Rules of Civil Practice to dismiss the complaint for failure to commence the action within the time limited by law. The motion was denied at Special Term. The substantive aspects of the death action are governed by Pennsylvania law. The Pennsylvania statutes provide that the action may be maintained by the widow and that “ the action shall be brought within one year after the death, and not thereafter”. (12 Purdon’s Pa. Stats., §§ 1601-1603.) The right to sue is a matter of substantive law (Wooden v. Western New York & Penna. R. R. Co., 126 N. Y. 10, 16; Baldwin v. Powell, 294 N. Y. 130, 132-133) while the limitation period is procedural only (Rosenzweig v. Heller, 302 Pa. 279 ; Sharrow v. Inland Lines, 214 N. Y. 101; Panzironi v. Heath, 197 Misc. 847). Under section 13 of the Civil Practice Act the time limited by the laws of this State apply in favor of plaintiff. As a resident of New York State, the plaintiff has the right to invoke the more favorable New York Statute of Limitations, rather than the Pennsylvania statute. We need not decide in this ease which of the New York periods of limitation is applicable. (See Civ. Prac. Act, §§ 48, 49, 53; Decedent-Estate Law, § 130.) Whichever New York statute is applicable, the action was commenced in time. The action was commenced more than two years,
