Moore v. Atlantic Coast Line R.

Second Circuit

Moore v. Atlantic Coast Line R.

153 F.2d 782, 1946 U.S. App. LEXIS 1975

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 21, 1946

DocketNo. 206

StatusPublished

Cited by3 cases

This text of 153 F.2d 782 (Moore v. Atlantic Coast Line R.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moore v. Atlantic Coast Line R., 153 F.2d 782, 1946 U.S. App. LEXIS 1975 (2d Cir. 1946).

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Opinion

PER CURIAM.

This action was commenced more than one year after the death of the plaintiff’s intestate.. The one year limitation in the North Carolina statute, G.S. § 28-173, has been consistently construed as a condition precedent to maintenance of the right of action. Gulledge v. Seaboard Air Line R. Co., 147 N.C. 234, 60 S.E. 1134, 125 Am.St.Rep. 544, rehearing 148 N.C. 567, 62 S.E. 732; Neely v. Minus, 196 N.C. 345, 145 S.E. 771; Mathis v. Camp Mfg. Co., 204 N.C. 434, 168 S.E. 515. The case of Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 860, 68 A.L.R. 210, upon which the appellant strongly relies, contains nothing to the contrary. It holds merely that the one year time limit of the North Carolina statute “constitutes a statute of limitation” in respect to the right of action under the Florida wrongful death [783]*783act, F.S.A. § 768.01 et seq., which annexed no time limit as a condition of the right, “as well as a condition annexed to liability” under the North Carolina statute. The New York courts and this court are bound by the interpretation put upon a foreign statute by the court of last resort of the foreign state; hence we must apply the North Carolina rule. Schwertfeger v. Scandinavian American Line, 186 App.Div. 89, 174 N.Y.S. 147, affirmed 226 N.Y. 696, 123 N.E. 888; Gatti Paper Stock Corp. v. Erie Railroad Co., 272 N.Y. 535, 4 N.E.2d 724; A. L. I. Restatement, Conflict of Laws § 605. That sections 13 and 55 of the New York Civil Practice Act have no application to the right of action created by a statute like that of North Carolina is made clear by the report of the Law Revision Commission, Legislative Document (1943) No. 65F.

Judgment affirmed.

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PER CURIAM.

This action was commenced more than one year after the death of the plaintiff’s intestate.. The one year limitation in the North Carolina statute, G.S. § 28-173, has been consistently construed as a condition precedent to maintenance of the right of action. Gulledge v. Seaboard Air Line R. Co., 147 N.C. 234, 60 S.E. 1134, 125 Am.St.Rep. 544, rehearing 148 N.C. 567, 62 S.E. 732; Neely v. Minus, 196 N.C. 345, 145 S.E. 771; Mathis v. Camp Mfg. Co., 204 N.C. 434, 168 S.E. 515. The case of Tieffenbrun v. Flannery, 198 N.C. 397, 151 S.E. 857, 860, 68 A.L.R. 210, upon which the appellant strongly relies, contains nothing to the contrary. It holds merely that the one year time limit of the North Carolina statute “constitutes a statute of limitation” in respect to the right of action under the Florida wrongful death [783]*783act, F.S.A. § 768.01 et seq., which annexed no time limit as a condition of the right, “as well as a condition annexed to liability” under the North Carolina statute. The New York courts and this court are bound by the interpretation put upon a foreign statute by the court of last resort of the foreign state; hence we must apply the North Carolina rule. Schwertfeger v. Scandinavian American Line, 186 App.Div. 89, 174 N.Y.S. 147, affirmed 226 N.Y. 696, 123 N.E. 888; Gatti Paper Stock Corp. v. Erie Railroad Co., 272 N.Y. 535, 4 N.E.2d 724; A. L. I. Restatement, Conflict of Laws § 605. That sections 13 and 55 of the New York Civil Practice Act have no application to the right of action created by a statute like that of North Carolina is made clear by the report of the Law Revision Commission, Legislative Document (1943) No. 65F.

Judgment affirmed.

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153 F.2d 782, 1946 U.S. App. LEXIS 1975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-atlantic-coast-line-r-ca2-1946.

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