Federal Insurance v. United Port Service Co.

23 Misc. 2d 142, 199 N.Y.S.2d 552, 1960 N.Y. Misc. LEXIS 3541

• Court: New York Supreme Court
• Decided: February 23, 1960
• Status: Published

Opinion

Aron Steuer, J.

In three actions based on essentially similar facts plaintiffs sue as insurers subrogated to the rights of their assureds. The form of the complaints is for breach of contract of bailment. Defendant stored goods on piers for plaintiffs’ assureds and the goods were injured or destroyed by rising waters. Suit in each instance was begun more than three years and less than six years after the incidents causing the damage. The motions are to dismiss the complaints pursuant to rule 107 of the Rules of Civil Practice, as jbeing barred by the Statute of Limitations. The question is whether the three-year statute affecting injury to property or the six-year statute affecting contract applies.

Forms of action have been abolished. Pursuant to that procedural step, it is of no moment in which of the conventional forms of pleading plaintiff frames his case; it is valid in any form. On the other hand, when it comes to what Statute of Limitations will be applied, the form is equally unimportant; the purpose of the action alone will be considered (Atlas Assur. Co. v. Barry Tire & Serv. Co., 3 A D 2d 787). As the purpose of these actions is to recover for the damage to property while in the bailees’ care and the grounds of recovery are defendant’s negligence (Jacobs v. Alrae Hotel Corp., 4 N Y 2d 769), the three-year statute applies (Hillel v. Motor Haulage Co., 102 N. Y. S. 2d 578).

Plaintiff contends that all of these propositions have been overruled by the decision in Blessington v. McCrory Stores Corp. (305 N. Y. 140). This was an action to recover for injuries on a breach of warranty in the sale of foods. Without going into the interesting history - of that type of action or the visceral substitute for reasoning on which it is based, suffice it to say that it is sui generis. Admitting the premises, namely, that it rests on the statutory breach of warranty in the Sales Act and is not dependent on negligence, and disregarding the measure of damages, all of which steps are essential, then this is an action for breach of contract not only in form, but in fact. So the holding does not alter the law otherwise applicable. Motions granted.