Jorgensen v. Minister of Reformed Low Dutch Church

26 N.Y.S. 876, 23 N.Y. Civ. Proc. R. 232

• Court: New York Court of Common Pleas
• Decided: October 18, 1893
• Status: Published

Opinion

GIEGERICH, J.

The question raised by the defendant in opposition to the demurrer herein is whether any distinction exists between an action for personal injuries caused by the maintenance of a nuisance and an action for personal injuries resulting from negligence, with reference to the statute of limitations. The complaint clearly sets forth the cause of action for damages by reason of the maintenance of a nuisance, and, unless it can be said that the above distinction does not exist, the demurrer must be sustained. Section 382, subd. 3, of the Code, prescribes that the time within which an action for personal injuries shall he brought is six years, “except in a case where a different period is expressly prescribed in this chapter.” The only express exception relative to an action for personal injuries is found in section 383, subd. 5, which relates to personal injuries resulting from negligence, in which case the limitation is three years. I can find no justification for holding that this action can be brought within the exception expressed in the above section. The question of negligence is not in this case, an unlawful maintenance of the structure causing the injury being the sole gravamen of the action. Even under the most liberal construction of section 383, it cannot be said to comprise an action of this character, and a construction the reverse of liberal should be adopted in reading that section in connection with the former provision, in derogation of which it stands. The demurrer is therefore sustained, with costs.