Hogan v. Wolf — 32 N.Y. St. Rep. 550

Majority

p. 550

Catherine A. Hogan, Pl’ff, v. Caroline Wolf, Def’t.

(Supreme Court, General Term, First Department

Filed June 6, 1890.)

Headnote

Criminal conversation — Limitation.

A cause of adtion by a wife for the enticement of her husband is barred at the expiration of six years, and in the absence of allegations of a new enticement, subsequent injuries resulting from such enticement do not revive the right to sue.

Motion by plaintiff for new trial upon exceptions directed to be heard in the first instance at the general term.

Benjamin Patterson, for motion; Bdward 0. James, opposed.

This, action was brought to recover damages because of the enticement of the plaintiff’s husband from her in the year 1858, and the depriving the plaintiff of his comfort and society and assistance from that time until the-time of his death, which occurred in 1885, twenty-seven years after said alleged enticement.

Amongst other defenses, the defendant set up the six years statute of limitation. Upon the opening of the plaintiff’s counsel the counsel for the defendant moved to dismiss the complaint on the pleadings, which motion was granted and exception duly taken, which was ordered to be heard in the first instance at the general term.

p. 551

The ground upon which the plaintiff seeks to avoid the statute •of limitation is that her rights are similar to those of the owner of land upon which a continuing nuisance is maintained, and a -cause of action is renewed each day as long as the nuisance causing the damage continues. I think that it would be difficult to assimilate actions for personal injuries to actions for trespass upon lands. In the one all the damages suffered or to be suffered can and must be recovered in one action; in the other, future damages cannot be recovered.

In a case similar to the-one at bar, if a recovery is once had, without showing that a new cause of action has arisen, no new action can be maintained. The cause of action arises from the enticement, and without any new enticement no new cause of action arises.

In the case at bar but one enticement is alleged. A cause of action then arose and should have been enforced within six years. As now no cause of action can be maintained because of that enticement, and no new one is alleged, the subsequent injuries resulting from that enticement cannot revive the right to sue.

The exception should be overruled and judgment entered in favor of the defendant, with costs.

Brady and Daniels, JJ., concur..