Hermes v. Westchester Racing Ass'n

McAvoy, J.: Our ruling is not to rest on the term to be given the cause - of action under common-law nomenclature, whether ex delicto or ex contractu. The doubt exists concerning the time of limitation of the commencement of an action of the nature described in the complaint under statutory provisions limiting the time for enforcing a civil remedy now embodied in sections 48, subdivision 1, and 49, subdivision 6, of the Civil Practice Act. (Formerly Code Civ. Proc. §§ 380, 382, subd. 1; Id. § 383, subd. 5.) We are convinced that it is necessary, in view of the language of the sections mentioned, to look into the facts of the claim as alleged to determine the rule under the liability sought to be enforced against the defendant, and if the “ gravamen of the action and foundation of the claim ” are “ to recover damages for a personal injury resulting from negligence ” (See Civ. Prac. Act, § 49, subd. 6), to enforce the statutory prescription against the maintenance of the action, whether in form it be brought ex contractu or ex delicto. That this action, although brought as though to enforce a contract obligation, is one which seeks to recover damages for a personal injury resulting from negligence, cannot be gainsaid. There is no other basis for the suit in its claim for damages, and no injury to plaintiff’s person was caused by any other tortious conduct than the negligence described. The provision of section 48, subdivision 1, of the Civil Practice Act, which governs the time within which the commencement of actions on contract is limited, has no such specific reference to the claim here made in the complaint as has the provision of section 49, subdivision 6. The very wording of the former excludes its application to the facts alleged. It reads: “ § 48. Actions to be commenced within six years. The following actions must be commenced within six years after the cause of action has accrued: “ 1. An action upon a contract obligation or liability express or implied, except a judgment or sealed instrument.” Certainly this cannot refer to an action where defendants’ liability to persons attending their exhibition is predicated on the sole ground of then negligent conduct of the enterprise resulting in a personal injury. That the form of an action, whether ex contractu or ex delicto, does not affect the application of the limitation statute has been heretofore ruled in the Court of Appeals and in this court itself. The language in Webber v. Herkimer & Mohawk S. R. R. Co. (109 N. Y. 311, 314) seems quite decisive: “ The sole question for our review is the correctness of the judge’s ruling, upon the application of the Statute of Limitations, set up in defendant’s answer as' a149 bar to the action. Plaintiff’s counsel contends that the cause of action arises upon a ‘ contract obligation ’ of the defendant, and that subdivision 1 of section 382 of the Code of Civil Procedure provides that such an action may be brought within six years. He argues that the gravamen of the action and foundation of the claim are the contract or undertaking of the defendant, and that defendant was under no obligation to him, excepting that arising therefrom, and that subdivision 5 of section 383, being intended to apply to cases of liability not resting upon contract, does not apply. “ It is, however, too well settled, to require extended discussion at this day, that common carriers of passengers are not insurers of personal safety, and that for an injury happening to the person of a passenger they are only liable for negligence in failing to use due care, diligence or skill in and about their undertaking, in order to prevent those injuries which human foresight and care can guard against. If there is any defect in the vehicle by which passengers are carried, and an injury, occurs thereby, they are liable, if at all, on the sole ground of negligence. “ The form of the action, whether ex contractu, as claimed to be the case here by appellant’s counsel, or ex delicto, does not affect the case under this statute. (Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 134.)” This rule was cited approvingly in Maxson v. D., L. & W. R. R. Co. (112 N. Y. 559, 561). And in this court the same interpretation was given to these sections as contained in the former Code of Civil Procedure, although the precise point was not contested there. See Aplington v. Pullman Co. (110 App. Div. 250, 254), where Mr. Justice Laughlin remarked, obiter: “ The action, [on a breach of contract for failing to provide a sleeping berth in a Pullman car] strictly speaking, is not ex contractu. It would not be assignable and the Statute of Limitations relating to torts, - as distinguished from contracts, would be applicable. (Webber v. Herkimer, etc., R. R. Co., 109 N. Y. 311.) ” We canpot distinguish the facts here alleged from those which were set forth in the causes just cited, and we believe that both principle and precedent are united in the rule that in a cause of the nature described the three-year statute governs. The authority invoked by our brother Dowling (Busch v. Interborough R. T. Co., 187 N. Y. 388) seems to us indecisive of the point now involved. There the ruling made for the right' to sue a carrier in form ex contractu and held that although the breach of the right arising in contract was of tortious nature, the suit might be grounded in the other form. The question of the inter [150] pretation of the statute limiting the time for the commencement of civil actions was not involved and certainly, in our view, was not decided. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Finch and Martin, JJ., concur; Clarke, P. J., and Dowling, J., dissent.