15 N.E.2d 573 | NY | 1938
Plaintiff is a resident of Oklahoma and a former employee of defendant, which is a New Jersey corporation. The original complaint was served July 31, 1930, to recover damages for personal injury sustained by plaintiff in July, 1928, through the alleged negligence of defendant in Venezuela where plaintiff was then employed by defendant. It alleged that plaintiff was injured in an automobile which was provided by defendant and operated by defendant's agents, by reason of its defective condition, of which defendant had notice, and that his injury was caused solely by the negligence of defendant. Also it set forth this provision of article 1218 of the Venezuela Civil Code: "Every person is responsible for the injury he has caused, not only by his act, but also by his negligence or imprudence." The action was tried in January, 1934, and a verdict was rendered for plaintiff, which was set aside and a new trial *192 ordered on the ground that it was contrary to the evidence and the law.
In October, 1936, plaintiff, without taking the new trial fornegligence to which he was entitled under the orders of the Trial Term and Appellate Division, moved for leave to serve an amended complaint, and his motion was granted. The alleged cause of action for negligence, as originally pleaded, was repeated as a first cause of action in the amended complaint and in addition another alleged cause of action was pleaded. This second cause of action does not allege negligence but pleads plaintiff's contract of employment with defendant and the fact of his injurysolely by reason of his fall from the automobile which was provided by defendant and operated by its agents. It also alleges that the rights, duties and obligations of plaintiff and defendant are governed by article 1683 of the Venezuela Civil Code, which reads in part as follows: "The hirer has the right to end the agreement, if the servant becomes disabled by any cause for the service during more than one month, provided that the disability, in an industrial or mining establishment, does not arise from the service itself, in which event the hirer iscivilly responsible for the accidents incurred in the service, unless fault is proved on the part of the servant." Defendant moved, pursuant to rule 107 of the Rules of Civil Practice, for an order dismissing this second cause of action on the ground that it did not accrue within the time limited by law for the commencement of an action thereon, and its motion was granted.
This amended complaint was not served until November, 1936, more than eight years after the alleged cause of action arose. The first question of law is whether a new cause of action is alleged or merely whether a change in legal theory is effected. Plaintiff's attorneys assert that the motion for leave to serve this amended complaint is based upon sections 245-a and 245-b of our Civil Practice Act. The section first mentioned confers *193
authority upon the court to permit a party to serve a supplemental pleading alleging "any new and additional cause orcauses of action." The exposition in Payne v. N.Y., S. W.R.R. Co. (
Since a new and distinct cause of action is alleged in the amended complaint, a second issue of law is in the case. The new action for personal injury, based solely upon a liability without the commission of a wrong was not begun until eight years after the cause of action arose. Under the law of Venezuela the Statute of Limitations is twenty years. Section 48, subdivision 2, of our Civil Practice Act prescribes six years as the Statute of Limitations for an action to recover upon a liability created by statute, and subdivision 3 prescribes the same limitation for an action to recover damages for a personal injury "except in a case where a different period is expressly prescribed in this article." Section 49, subdivision 6, expressly prescribes three years for an action for personal injury resulting fromnegligence. This section 49, subdivision 6, can have no application to this case as the action is not based on negligence but solely on a statutory liability created by the law of Venezuela. This case differs from the principle of Meyers v.Credit Lyonnais (
The judgment should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN and FINCH, JJ., concur; RIPPEY, J., dissents on the ground that the lex loci applies as to the time within which the action must be brought (37 C.J. pp. 686, 732; Kiefer v. Grand Trunk Ry. Co.,
Judgment affirmed.