269 A.2d 32 | Conn. Super. Ct. | 1970
The third-party plaintiff herein (The Hertz Corporation), hereinafter called "Hertz," is a defendant in the original action instituted against it by Carleton B. Ryder and Mabel M. Ryder, who *10
claim to have sustained injuries and damages resulting from the operation of a vehicle owned and leased by Hertz to the decedent of the third-party defendant, hereinafter called "the executor." The cause of action set forth in the original complaint is predicated on §
Hertz has demurred to these defenses. Succinctly stated, the demurrer contends that no claim was in existence within the period set by the Probate Court and further that the 1967 amendment to the statute relating to the limitation of time for presenting claims against solvent estates (Public Acts 1967, No. 558 § 49, amending §
A consideration of the issues raised requires a searching of the record. White v. Avery,
It is clear that within the period designated by the Probate Court for the presentation of claims no litigation had been instituted against Hertz by the Ryders. While, by virtue of its ownership of the leased vehicle at the time of the accident and within that period, there did exist potential liability on the part of Hertz upon the commencing of a suit by the Ryders (§
The so-called Statute of Nonclaim (§
Quite obviously the second special defense proffered by the executor assumes that a cause of action on the part of Hertz against the executor existed on the day of the accident and injuries to the Ryders.
A right of action does not attach until the cause of action comes into being. The cause of action involves the existence of a primary right in a plaintiff and an invasion of that right by some delict on the part of the defendant. Veits v. Hartford,
Ordinarily, the cause of action in favor of Hertz would not accrue until the Ryders had secured judgment against Hertz. McEvoy v. Waterbury,
The demurrer to both special defenses is sustained.