270 A.D. 1053 | N.Y. App. Div. | 1946
Action to recover damages for personal injuries and property damage as the result of the collision of two automobiles in a foreign State. Judgment affirmed, with costs. The proceedings in the Circuit Court in Hlinois, in which the proofs of service were struck out and the complaint dismissed, with costs against the plaintiffs, constituted an action in which the plaintiffs were nonsuited within the meaning of the Illinois statute which gave an additional period of one year in which to commence a new action. (Smith-Hurd, Statutes of Illinois, ch. 83, § 24a; Jones, Illinois Statutes Annotated, § 107.284.) Carswell, Johnston and Aldrich, JJ., concur; Lewis, P. J., and Adel, J., dissent and vote to reverse the judgment and to dismiss the complaint, with the following memorandum: On the reasoning of the decisions in Erickson v. Macy (236 N. Y. 412) and Knox v. Beckford (285 N. Y. 762, affg. 258 App. Div. 823, affg. 167 Misc. 200), it would seem that the proceedings taken by plaintiffs in the Illinois court cannot be found to have created a “ pendency of action ” for the reason that the Illinois court had no jurisdiction of the person of the foreign administrator and never could obtain it. (Judy v. Kelley, 11 Ill. 211.) If there was no action pending at the time the two-year statutory period expired, the right to commence again, as granted by the one-year renewal statute (Illinois Rev. Stat., ch. 83, § 24a; Jones, Illinois Statutes Annotated, § 107.284) never accrued, and it matters not whether or not the decision of the Illinois court quashing the writ and dismissing the complaint is construed as a nonsuit.
