Opinion
June 3, 1957
In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order denying a motion to dismiss the complaint on the grounds (1) that the court does not have jurisdiction of the subject of the action, (2) that there is an existing final judgment determining the same causes of action between the parties, and (3) that the causes of action set forth in the complaint did not accrue within the time limited by law for the commencement thereof. In a prior action between the same parties for the same causes, judgment was entered at a Trial Term dismissing the complaint, and an order denying a motion to vacate said judgment was affirmed by this court ( Haber v. Telson, 1 A.D.2d 906). The record on the prior appeal has been considered on this appeal. In denying the motion, the Special Term held that the present action is maintainable and was timely commenced under section 23 of the Civil Practice Act. Order reversed, with $10 costs and disbursements, and motion to dismiss the complaint granted. The undisputed evidence shows that when the first action appeared on the ready day calendar both sides answered "Ready" and were instructed to select a jury. Plaintiffs in that action (respondents on this appeal) failed to appear for that purpose, although additional time was granted therefor. Thereupon the complaint was dismissed. No action was then pending. About 3-1/2 months after the dismissal, the motion to vacate that judgment was made, and the order denying the motion was affirmed by this court about 18 months after the dismissal. The second action was brought about 20 months after the dismissal, and is barred by the one-year limitation period in section 23 of the Civil Practice Act. Nolan, P.J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur. [ 2 Misc.2d 118.]