Mercantile National Bank v. Corn Exchange Bank

Majority

p. 643

(68 Hun, 95.)

MERCANTILE NAT. BANK OF CITY OF NEW YORK v. CORN EXCHANGE BANK.

(Supreme Court, General Term, First Department.

March 17, 1S93.)

Headnote

Practice—Serving Complaint—Extension oe Time—Limitations.

The statutory provision allowing judges to enlarge the time within which a proceeding in an action after its commencement must be done does not authorize an order allowing a plaintiff, who has at the time no cause of action against defendant, to postpone indefinitely the service of complaint in the action for the purpose of preventing the statute of limitation from running against some cause of action which might thereafter be determined to exist. O’Brien, J., dissenting.

Appeal from special term, Hew York county.

Action by the Mercantile Hational Bank of the City of Hew York against the Corn Exchange Bank. Defendant appeals from an order extending indefinitely the time for serving the complaint.

Reversed.

Argued before YAH BRUHT, P. J., and O’BRIEH and FOLLETT, JJ.

Platt & Bowers, (J. M. Bowers, of counsel,) for appellant.

Charles A. Davison, (S. B. Brownell, of counsel,) for respondent.

It seems to be conceded that the plaintiff at the present time has no cause of action whatever as against the defendant; and this action was brought in order that at some future time, in case it should be determined that a cause of action did exist, the statute of limitations should not .have run against such cause of action. We are not aware of any authority upon the part of the court to extend the operation of the statute of limitations. It is true that under the Code the court or a judge may make an order enlarging the time within which a proceeding in an action after its commencement must be commenced. But it is apparent that this power was not given to the court for the purpose of defeating the provisions of law in respect to the limitations of actions. In this case some action has been commenced, but nobody knows what action, or upon what claim, or founded upon what facts; and the result of such indefinite extension would be to enable the plaintiff to avail itself of the cover of this summons served, to prevent the statute from running against any claim for any cause which it might have against the defendant. By not serving the complaint, such a result would be produced, and we think this is an abuse of the discretion which is confided in the court to extend the time within which a proceeding in an action may be taken. The order should be reversed, with $ 10 costs and disbursements, and the plaintiff required to serve his complaint within a reasonable time.

FOLLETT, J., concurs.

In my opinion, the court had the power to make the order appealed from, and upon the facts here appearing it was properly exercised. I therefore dissent.