Caruthers v. Bankers Trust Co.

Headnote

Limitation of actions — practice —■ discontinuance, on motion of plaintiff, without prejudice, of action on claim against decedent’s estate —• right to commence new action within year.

Caruthers v. Bankers Trust Co., 215 App. Div. 694 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 30, 1925, which reversed an order of Special Term granting a motion by defendant for judgment upon the grounds that the cause of action alleged in the complaint did not accrue within the time limited by law for the commencement of the action and that there was an existing final judgment or decree of a court of competent jurisdiction rendered on the merits dismissing the same cause of action between the same parties. The action was originally brought within three months after rejection of a claim against decedent’s estate and upon coming on for trial a motion of discontinuance made by plaintiff was granted, it being ordered that plaintiff upon payment of costs might “ start her action over again without prejudice.” The following question was certified: “ Did the order of discontinuance of the former action entered at Supreme Court Trial Term New York county on the 19th day of June 1924, upon motion of the plaintiff in said action over the opposition of the defendant executor, the defendant executor having thereafter accepted the costs awarded upon such discontinuance, have the effect as matter of law, pursuant to Civil Practice Act, section 23, of giving to the plaintiff the right to commence a new action upon the same cause of action within one year after the entry of said order without regard to the limitations contained in Surrogate’s Court Act, section 211? ”