Majority
p. 539David Gundershein, an Infant, by Arthur Gundershein, His Guardian ad Litem, Appellant, v. Bradley-Mahony Coal Corporation et al., Respondents, et al., Defendants. Submitted May 22, 1946; decided July 23, 1946.
p. 540The judgment should be reversed. (Sheehan v. North Country Community Hosp., 273 N. Y. 163 ; Miller v. Town of Irondequoit, 243 App. Div. 240 ; Louden v. Slate of New York, 181 Misc. 139 .) Plaintiff’s action is barred by the Statute of Limitations. (Frehe v. Schildwachter, 263 App. Div. 379 , 289 N. Y. 250 ; Brand v. Union Railway Co., 173 Misc. 224 ; McDowell v. Chemical Bank and Trust Co., 38 N. Y. S. 2d 248 .) Plaintiff’s action is barred by Statute of Limitations. (Frehe v. Schildwachter, 263 App. Div. 379 , 289 N. Y. 250 ; Matter of Becker, 28 Hun 207 .)
Isidor Enselmcm and Louis Solomon for appellant.
Gregory A. Lee and Daniel Miner for Bradley-Mahony Coal Corporation, respondent.
John J. Stewart and John P. Smith for Vermilyea Realty Co., respondent.
The judgment dismissing the prior action brought in behalf of the infant plaintiff was ordered because of failure of diligent prosecution by the guardian ad litem.
p. 541
Since that judgment was not rendered upon the merits, it does not prevent the present action for the same cause of action (Civ. Prac. Act, § 482). Hence the present action, which was commenced within the period of the plaintiff’s infancy, is not barred by the Statute of Limitations (Civ. Prac. Act, § 49, subd. 6; § 60, subds. 1, 3).
The judgments should be reversed and the motions denied, with costs in all courts.
Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur.
judgments reversed, etc.
Cases cited
- Sheehan v. North Country Community Hospital 273 N. Y. 163 p. 540
- Louden v. State 181 Misc. 139 p. 540
- Frehe v. Schildwachter 289 N. Y. 250 p. 540
- Brand v. Union Railway Co. 173 Misc. 224 p. 540