Rague v. Cunard S. S. Co. , 249 N.Y.S. 622 ( 1930 )

Fawcett, J.

Motion to strike out separate defense pursuant to rule 109 of the Rules of Civil Practice. Plaintiff sues because of injuries received while a passenger on defendant’s steamship Franconia. Plaintiff asks by this motion to have stricken out a defense to the effect that the provision in her contract of passage that no suit, action or proceeding shall be “ maintained ” for injury unless written notice of the claim be delivered within forty days after debarkation. The provision was identical with that involved in Murray v. Cunard S. S. Co. (235 N. Y. 162). The question presented is whether the summons and complaint served within forty days will be accepted in law as the notice required, no other having been served." It is conceded that the question is open so far as the New York courts are concerned,'" and there is a sharp diversity of decisions in other jurisdictions. It is to be noticed that the terms of the provision prohibit the maintenance of suit and not in direct terms the bringing thereof, which indicates that the intent is not to fix a time prior to which actions cannot be brought, but after which they cannot be maintained, and this emphasizes the correctness of the view that institution of the action within the time stipulated is sufficient compliance as to notice. Shearman & Redfield on Negligence (6th ed.), section 544, states that such is the decided tendency of authority, and, so ruling, the motion to strike out the defense is granted.