Preusse v. Childwold Park Hotel Co.

| N.Y. App. Div. | Nov 5, 1909

McLaughlin, J.:

At the trial the complaint was dismissed upon the pleadings and upon the opening of plaintiff’s counsel, upon the ground that the action was barred by the Statute of Limitations, and plaintiff appeals.

The action was brought to recover damages for personal injuries alleged to have been sustained on July 8,1903, by reason of defendant’s negligence. The plaintiff, at the time she was injured, was eighteen years, ten months and seven days old. The action was commenced February 28, 1907, three years, seven months and twenty days after the cause of action accrued.

An action to recover damages for personal injuries resulting from negligence must be brought within three years after the cause of action accrues (Code Civ. Proc. § 383, subd. 5), but if the person entitled to maintain such an action is, at the time when the cause of action accrues, within the age of twenty-one years, then the time of such disability is not a part of the time limited for commencing the action except that the time so limited cannot be extended more than five years by any such disability, except infancy, or in any case more than one year after the disability ceases. (Code Civ. Proc. § 396.) The plaintiff having reached the age of twenty-one years before the three years’ limitation had expired, was required to commence her action either before the expiration of that period or else within one year after she attained her majority. (Hyland v. N. Y. C. & H. R. R. R. Co., 24 A.D. 417" court="N.Y. App. Div." date_filed="1897-12-15" href="https://app.midpage.ai/document/hyland-v-new-york-central--hudson-river-railroad-5183538?utm_source=webapp" opinion_id="5183538">24 App. Div. 417.) On August 31, 1905 — the day the plaintiff became twenty-one years of age — the three years’ Statute of Limitations had nearly ten months to run against her claim, until July 8, 1906. The one-year extension allowed by the statute from the date-of termination of her disability would have extended the time within which she might commence an action until August 31, 1906. The action, as stated, was not commenced until February 28, 1907, over seven months after the expiration of the three-year period and six months after the expiration of the one-year extension. The period of limitation must be computed from the time of the accruing of the right to relief by action. (Code Civ. Proc. § 415.) The language of the statute is plain. It is : “ The time so limited cannot be extended * * * in any case more, than one year after the disability ceases.” . I do not see how there can be any serious question as to what the Legislature intended. Its purpose was to give a minor who had a cause of action a reasonable time after he became of age to commence an action to enforce it. It did not intend to add a year to the regular period of lipaitation where'the running of the period of limitation and the running of the year allowed by statute are concurrent.

Here when the plaintiff commenced her action the three years’ limitation had expired as had also the year allowed as an extension after she became of age. The Statute of Limitations pleaded, therefore, was a complete defense and the facts having been stated in the opening of plaintiff’s counsel the complaint was properly dismissed.

The judgment and order appealed from, therefore, are affirmed, with costs.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Judgment and order affirmed, with costs.