Thomas v. City of New York ( 1910 )

SEABURY, J.

Plaintiff sues to recover damages for an injury, resulting in the death of a horse, sustained in an accident which occurred November 14, 1906. The action is against the city of New York. Section 361 of the Greater New York charter (Laws 1901, c. 466, as amended by Laws 1906, c. 550), requires that such an action shall be commenced within one year. It appears that an action by “John Thomas, plaintiff, against the City of New York, defendant,” was commenced in the City Court of the city of New York, and that in that action an order was duly made on February 10, 1909, directing that said action—•

“be and the same hereby is discontinued, without costs to either party as against the ether, with the same force and effect as if the complaint herein had been dismissed upon- the trial of this action, on the ground that the said court had no jurisdiction of the subject-matter or the person of the defendant.”

It is provided by section 405 of the Code of Civil Procedure that:

“If an action is commenced within the time, limited therefor, * * * the plaintiff * * * may commence a new action for the same cause.”

This provision of the statute does not avail the plaintiff in this action, because the record discloses no evidence showing that the City Court action was for the same cause of action as that upon which the plaintiff now sues, nor is there any evidence to establish that the action in the City Court was commenced within the year prescribed by section 261 of the Greater New York charter. Clifford v. Duffy, 56 Misc. Rep. 667, 107 N. Y. Supp. 809.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.