Fitzgerald v. Bigalow

Order reversed, with ten dollars costs and disbursements, and matter remitted to the Special Term to proceed in accordance with the memorandum. Memorandum: A motion may be made under subdivision 6 of rule 107 of the Rules of Civil Practice whether or not the defendant has answered. This was not formerly the law because of section 282 of the Civil Practice Act, which, however, was repealed on March 16, 1932 (Laws of 1932, chap. 224). We held to the same effect in Crocker v. Ireland (235 App. Div. 760), although the point was not mentioned in the memorandum or in the briefs. The complaint states two causes of action, one for personal injuries, and one for damage to property. (Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40.) The Statute of Limitations is tolled by the absence of the defendant from the State for slightly more than three years. In fairness to the plaintiff we think she should be given an opportunity to present facts traversing the defendant’s statement in her affidavit or to present grounds for proceeding under some of the provisions of rule 108 of the Rules of Civil Practice, if plaintiff may be so advised. All concur. (The order denies a motion to dismiss the complaint in an automobile negligence action.) Present — Sears, P. J., Edgcomb, Crosby, Lewis and Taylor, JJ.