Crapo v. . City of Syracuse

Though I concur in reversing the order of the Appellate Division and in the affirmance of the judgment of the trial court, I am of opinion that the action is one for personal injuries within the meaning of chapter 572 of the Laws of 1886. Certainly it was an injury to the person of the deceased that gave rise to the cause of action, and it is not necessary to constitute the action one for personal injuries that it should be for injuries to the person of the plaintiff. Unless this is so neither an action by a husband for injuries to his wife nor by a parent for injuries to a child would fall *Page 397 within the provisions of sections 382 and 383 of the Code of Civil Procedure, and it would follow that while an action for personal injury must be brought by the wife within two years the husband would have ten years in which to bring his action for the loss of her services. (Sec. 388.) Nor does the fact that the damages in the action given by statute are limited to pecuniary loss affect the question. The same rule obtains to a certain extent in an action by the husband for the loss of services of his wife, which, so far as pecuniary loss is involved, survives the husband's death and passes to his personal representatives. (Cregin v. Brooklyn Crosstown Ry. Co., 75 N.Y. 192.) The case comes plainly within the spirit of the statute as well as its letter, for every reason for requiring notice of the circumstances of the accident to be given to the municipality applies with as much force to an accident resulting in death as to one where the consequences have been less grave. I am of opinion, however, that the plaintiff's cause of action did not arise until her appointment as administratrix for the reason stated by Justice BRADLEY in Barnes v. City ofBrooklyn (22 App. Div. 520), and that, therefore, the notice required by the statute of 1886 was seasonably served and the action seasonably brought. If the results which follow that construction of the law of 1886 were such as suggested in the dissenting opinion written on this appeal, I think they would constitute a strong objection to that interpretation, but I am of opinion that no such results can follow. The limitations provided in the law of 1886 are not substitutional for the provisions of the Code, which are in no respect repealed, but cumulative. An action for personal injuries against a city of more than fifty thousand inhabitants must be brought in compliance not only with the statute of 1886 but with the provisions of the Code. Section 1902 of the Code requires an action by personal representatives to recover damages for their decedent's death to be brought within two years after that death. This effectually cuts off stale claims. In the present case the action was brought within the Code period. *Page 398