Harkow v. New York City Railway Co.

121 A.D. 194, 105 N.Y.S. 689, 1907 N.Y. App. Div. LEXIS 1735

Opinions

Jenks, J.:

In Griffin v. Interurban St. R. Co. (179 N. Y. 438) the court say (p. 449) : “ A sound public policy requires that only one penalty should be recovered in a single action, and that the institution of an action for a penalty is to be regarded as a waiver of all previous penalties incurred.” This action is to recover a- penalty under section 104 of the Railroad Law

* for refusal to give a transfer ticket. The parties denominate it as action Ho. 16. The Municipal Court judge dismissed the plaintiff on the ground that his action was barred by the institution of his action Ho. 17. The summons and complaint in each action were served on the defendant on the same day, January 2, 1907.

The learned counsel for the appellant contends, that action Hó: 16 Was commenced on the day that the summons therein was actually, delivered for service, presumably December 21, 1906, and before the summons was likewise delivered in action No. 17. He rests his Contention upon section 30 of the Municipal' Court Act.† That section provides: “ An action shall be deemed commenced at the time the summons is actually delivered for service. If the marshal or other person, having the summons to serve, cannot find the defendant so as to serve him therewith as required by this 'act, he must so return, arid the clerk shall, at the request of the plaintiff, if made between the last day when service could be had and the return day mentioned in said summons or alias, including such return day, continue from time to time to issue another summons, to be known as arid stamped alias,’ until the defendant is served.” But section 26 of the same act provides: “ An action brought in the municipal court of the city of New York,'must be commenced by the service of a summons,- or the voluntary appearance of and joinder of issues by the parties.” And section 31 provides in effect that that service shall be personal. Again, section 30 requires progress and in express terms reqiiires seiwice on the defendant. Moreover, section 30 but provides that the action “ shall be deemed commenced; ” that is, it shall be considered or regarded as commenced. It seems absurd to conclude, in the face of this expres-; si on—-of these positive provisions of section 26, of section 31 and of the requirements for service in the very section itself, that the same section means that for all intents and purposes the action was ■ commenced by. delivery for service. Full vigor can be attributed'' to the section if we construe it as a saving provision from the Statute of Limitations. And this, Í think, is the true interpretation of it.

Section 20 of the Municipal Court Act makes the provisions of the Code of Civil Procedure applicable to the Municipal Court unless conflicting. Section 400, when read with section 399, both of the Code of Civil Procedure, plainly indicates the purpose and the purview of section 30 of the Municipal Court Act. (See, too, Clare v. Lockard, 122 N. Y. 263; Gough v. McFall, 31 App. Div. 578.)

Such a commencement of the action as is contemplated by section 30 has no logical application to the principle involved in the case at bar. Fc»r to tire minds of the courts who laid down the principle, the deterrent effect of action for penalties came from the fact that the offender had notice of its institution and the prosecution which natúrally might follow. (See the remarks of Church, Ch. J., in Sturgis v. Spofford, 45 N. Y. 453, and of Grover, J., in Fisher v. N. Y. C. & H. R. R. R. Co., 46 id. 659, cases cited by O’Brien, J., writing for the court in Cox v. Paul, 175 id. 328, 332.)

The judgment is affirmed, with costs.

Woodwabd, ITookee and Rich, JJ., concurred; Gayhob, J., read for reversal.

See Laws of 1890, chap. 565, ,§ 105, as renumbered and amd. by Laws of 1892, chap. 676.—[Rep.

See Laws of 1903, chap. 580.— [Rep.