Mazzella v. Pittston Stevedoring Corp. , 140 N.Y.S.2d 881 ( 1955 )

In an action to recover damages for personal injuries, it appears that respondent- was injured on shipboard while engaged in his employment as a carpenter. The summons and complaint were served on the defendant owner of the ship and on the defendant stevedoring corporation, which was employed on the ship. The ship was in possession, operation, and control of appellant under a bareboat charter, of which respondent had knowledge shortly after commencement of the action. More than three years after his injuries, respondent moved to amend the title of the action so as to include appellant as a party defendant and for leave to serve an amended summons and complaint on appellant, on the ground that appellant was united in interest with the other two defendants, as stated in section 16 of the Civil Practice Act. The motion was heard without notice to appellant and was granted by order dated November 1, 1954. Thereafter the amended summons and amended complaint were served on appellant. Appellant moved to vacate the order of November 1, 1954, to dismiss the amended complaint, and for other relief. The motion was denied without prejudice to the right of appellant to plead the bar of the Statute of Limitations as a defense and to renew the motion to dismiss the amended complaint on that ground at the trial. An order was entered accordingly on January 20, 1955. The order of November 1,1954, was entered prior to the decision of this court in Mazzella v. Pittston Stevedoring Gorp. (284 App. Div. 984), which decided that the defendant owner is not liable to respondent for his injuries and that appellant, as charterer of the ship, is chargeable with the legal responsibilities of the owner. Appeals are from both orders. Order dated January 20, 1955, reversed on the law, with $10 costs and disbursements, and appellant’s motion granted to the extent of vacating the summons heretofore served upon it and dismissing the amended complaint. The facts establish that the cause of action against appellant is barred by operation of the Statute of Limitations. (Civ. Prac. Act, § 49.) Appeal from the order dated November 1,1954, dismissed, without costs. Wenzel, Acting P. J., Schmidt, Beldock, Murphy and Ughetta, JJ., concur.