Hyperlawhypertext legal database Watson v. Forty-Second Street & Grand Street Ferry Railroad 48 N.Y. Super. Ct. 44

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Watson v. Forty-Second Street & Grand Street Ferry Railroad

48 N.Y. Super. Ct. 44 16 Jones & S. 44 Court N.Y. Super. Ct. Decision date 1881-12-12 English

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p. 44
MARGARET J. WATSON, Respondent, v. THE FORTY-SECOND STREET AND GRAND STREET FERRY R. R. CO., Appellant.

Headnote

Statute of limitations.—Aetionsfor damages for personal injuries-
An action for damages for personal injuries caused by negligence, which accrued prior to September 1, 1877, and as to which the former limitation of one year had not at that time expired,, does not fall within the exceptions to section 414, Code of Civil Procedure, and- by the operation of the repealing act and subdivision 5, section 883, Code of Civil Procedure, the action may be brought within three years from the time the same accrued.
Before Sedgwick, Ch. J., and Speir, J.
Decided December 12, 1881.
The action is to recover for injuries to the person of
p. 45
the plaintiff through the negligence of the defendant, on April 18, 1877. It was commenced on January 15, 1880. The defendants pleaded the one year’s statute of limitation, and the reply was that she had three years under the Code of Civil Procedure, and that the period had not elapsed when the suit was brought. The only exception raised is to the ruling of the court denying a motion to dismiss the complaint after the proofs were in.
A. G. Vanderpoel, for respondent.
Ely & Smith, for appellant.

Under section 94 of the Code of Procedure, in force when the injury to plaintiff occurred, April 18, 1877, a right of action accrued to the plaintiff, subject only to the one year limitation. On June 5, 1877, the repealing act was passed by section 383, subdivision 5, and went into effect September 1, 1877, repealing absolutely section 94, subdivision 2 of the Code of Procedure, containing the one year clause.

The defendant’s counsel claims that the case is within the exceptions of section 414 of the Code as .amended. When subdivision 4 of that section went into effect, the time to commence the action had not expired.

When the injury occurred, April 18, 1877, the plaintiff had one year in which to bring the action. The repealing act was j>assed and took effect within the year, viz., on September 1, 1877, and the time of limitation was changed from one to three years, and there is no saving clause in the repealing act by which the act repealed can have any application in this case •under the provisions of the Code. It certainly could not be in the mind of the legislature, while extending the statute from one to three years, that they should cut

p. 46
off the short time of one year secured to a party, as a matter of law, to a period of about four months.

Where an act of parliament is repealed, it must be considered, except as to transactions passed and closed, as if it never existed (Dwarris on Statutes, 676).

Judgment affirmed, with costs.

Sedgwick, Ch. J., concurred.