Gaines v. City of New York , 142 N.Y.S. 401 ( 1913 )

Ingraham, P. J. (concurring in part):

I do not concur with Mr. Justice Laughlin that the Statute of Limitations is a bar to this action. The former action was commenced in the City Court, a court of record, and that action was finally dismissed on the ground that the City Court had no jurisdiction in an action against the. city of New York. This action was commenced within one year after the termination of that action and I think it is expressly within the provisions of section 405 of the Code of Civil Procedure. There is no exception in that section which excludes from its provisions an action brought in a court having no jurisdiction, but the section provides that “if an action is commenced within the time limited therefor * * ■ * the plaintiff * * * may commence a new action for the" same cause after the expiration of time so limited,” and this action was brought within one year after such action was terminated. The plaintiff sought to enforce his cause of action by. commencing an action in the City Court. He was mistaken in supposing, that that court had power to award him a judgment, but it seems to me that the provision of this section 405 of the Code of Civil Procedure was for the express purpose of providing for such a case so that a person having made such a mistake should not lose his right to enforcehis cause of action by reason of the Statute of Limitations, but should be given an opportunity to commence an action in; the proper court which had jurisdiction to afford him relief.

I concur, however, with Mr. Justice Laughlin on the sécond ground stated by him — that the failure of the city to light the approach was not the proximate cause of the accident, and, therefore, concur in the affirmance of the Appellate Term.

Determination affirmed, with costs.