Lapson v. 805 Avenue C Corp.

267 A.D. 919, 47 N.Y.S.2d 189, 1944 N.Y. App. Div. LEXIS 5513

Opinion

Appeal by plaintiff from an order denying his motion to amend a discontinuance “ nunc pre tune ” so as to provide that the action was settled and discontinued as against defendant 805 Avenue C Corporation only, and that the plaintiff retained the right to continue the action against any other third party responsible to him. Order affirmed, with ten dollars costs and disbursements. There was only one defendant in the action at the time it was settled and the stipulation for discontinuance filed with the clerk. Such filing discontinued the action with the same force as if a formal order had been entered. (Rules Civ. Prae. rule 301.) From that time on there was no pending action. While the plaintiff, within the time specified in section 29 of the Workmen’s Compensation Law, might have commenced an action against the respondent, or within that time might have brought the respondent into the original action, the attempt to sue it, after the expiration of that time, under the guise of bringing it in as a new defendant in an action which had already been discontinued, was a nullity, so far as any tolling of the statute was concerned. Close, P. J., Carswell, Adel, Lewis and Aldrich, JJ., concur.