Kavanagh v. Folsom

181 F. 401, 1910 U.S. App. LEXIS 5582

Opinion

NOYES, Circuit Judge.

This is an action to recover damages for the death of the plaintiff’s intestate, based upon the New York statute permitting a recovery in such causes. It appears from the complaint that the action was not brought within the two years limited by such statute for the commerfcement of the action. The defendant demurs upon the ground that no cause of action is stated.

When a statute, like the one upon which the complaint is based, creates a liability provided the suit for its enforcement is brought within a prescribed time, the time fixed operates as a limitation of the liability itself, and not of the remedy alone. A condition of the right to sue at all is that the action be brought within the stated time. The statutory provision is not a mere statute of limitation, and consequently the provisions of other New York statutes suspending the operation of statutes of limitation are inapplicable. As this complaint fails to state that it was brought within the time prescribed by the statute upon which it is based, it fails to state a cause of action.

Demurrer sustained, with costs.