Arnold v. Mayal Realty Co.

Peck, P. J. In an action for damages for death of plaintiff’s intestate, John Arnold, claimed to have been caused through defendants’ negligence, plaintiff originally sued Mayal Realty Company, Inc., the owner, and Julius Weiss, the lessee, of the premises in which the accident causing death occurred, alleging that the building was a tenant factory building under the Labor Law. Thereafter, exactly two years after the death of Arnold, plaintiff moved to bring in as an additional defendant, appellant John J. Meenan, Inc., as agent, in charge of the premises in which the accident happened, under the provisions of the Labor Law relating to a tenant factory building. From the order granting such motion the agent, appearing specially, appeals. The issue is whether the action against appellant is barred by section 130 of the Decedent Estate Law, which specifically provides that such action must be commenced within two years after decedent’s death. From the record and a written stipulation of the parties before this court, correcting in part and supplementing the record, the operative dates are: (1) January 22, 1945, date of death of plaintiff’s intestate; (2) January 22, 1947, date motion papers for leave to serve supplemental summons and amended complaint (with proposed supplemental summons and amended complaint annexed thereto) were served on appellant; (3) January 30, 1947, return day of the motion; (4) March 17, 1947, date of order appealed from granting plaintiff’s motion and directing that supplemental summons and amended complaint “ in the form as annexed to the motion papers may be issued and be served on said John J. Meenan, Inc., and on all the defendants herein.” (5) May 19, 1947, date of service of such supplemental summons and amended complaint on appellant pursuant to said order. The motion herein was made on the last day possible for commencement of the action under the two-year Statute of [3] Limitations. As the proposed supplemental summons and amended complaint were annexed to the motion papers served that day on the appellant, the question is whether the date of the commencement of the action, for the purpose of determining the applicability of the Statute of Limitations, is the date on which the motion papers were served or the date on which the supplemental summons and amended complaint were served pursuant to the order of the court entered on the motion. Section 16 of the Civil Practice Act provides that an action is commenced within the meaning of any provision of the act which limits the time for commencing an action when the summons is served. The summons and amended complaint were served twice here, once with the motion papers and again pursuant to the order. It can well be argued that the “ service ** of the summons and complaint was the latter service and that the former service was only of the motion papers and not of the summons and complaint as such. We" may assume that for routine purposes, such as fixing the time in which the defendant must appear or answer, this is so. For the purpose of applying the Statute of Limitations, however, a liberal construction must be given to section 16 of the Civil Practice Act (Prudential Insurance Co. v. Stone, 270 N. Y. 154, 159). The policy of liberal construction is illustrated by the case of Schram v. Keane (279 N. Y. 227) where the court held that an action was “ commenced ” and the statute ceased to run when a warrant of attachment was issued, although service of the summons would not come until afterward. Also, as stated by the Supreme Court in New York Central & Hudson River Railroad Co. v. Kinney (260 U. S. 340, 346) when a defendant has “ notice ” that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the Statute of Limitations do not exist and a liberal rule should be applied. The defendant had such notice here when the motion papers, with the accompanying summons and complaint, were served. We are of the opinion that for the purpose of determining the applicability of the Statute of Limitations, the action should be considered as commenced when the motion papers were served. The order appealed from should be affirmed, with $20 costs and disbursements.