Solomon v. Bennett

McLaughlin, J. :

The action was brought to recover damages for an alleged libel upon the plaintiff, published in a newspaper belonging to the defendant. The alleged libelous article appeared in the newspaper on the 12th of October, 1896. This action was commenced on the 22d day of April, 1899. It was barred by the two years’ Statute of Limitations (Code Civ. Proc. § 384), unless that bar is removed by the fact that in June, 1898, the plaintiff brought an action in the United States Circuit Court to recover damages for the same libel, which action was dismissed on the ground that the court had no jurisdiction. It is provided in the Code of Civil Procedure of the State of New York (§ 405) that “ If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff' * * * may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”

The question arising on this appeal is, whether the provisions of this section may be invoked by the plaintiff to preserve from the operation of the Statute of Limitations the 'cause of action set. forth in the complaint herein. I am of the opinion that the section has no application to an action brought elsewhere than in a court of record of the State of New York. The Statute of Limitations of the State of New York is contained in the Code of Civil Procedure, which is a code of practice having no relation to any other tribunals than those of the State of New York. That Code is a substitute for the Code of Procedure which was enacted by the Legislature of the State of New York as a code of practice pursuant to the 24th section of article 6 of the Constitution of 1846, which provided that the' Legislature at its first session after the adoption of that Constitution should provide for the appointment of commissioners to revise, reform, simplify and abridge the rules of practice and pleadings, forms and proceedings of the courts of récord of this State, and to report thereon subject to their adoption and modification by the Legislature from time to time.

It could not have been within the contemplation of the framers .of that constitutional provision to furnish rules of practice or procedure for the courts of the United States located within the territory of the State of New York, and “ a state law prescribing rules of practice has no efficacy ggroprio vigore in the courts of the United States.” (Mayor v. Lord, 9 Wall. 413.) If the courts of the United States see fit either by the adoption of rules or under acts of the Congress assimilating Federal practice to State practice, to adopt the latter that does not not change the inherent nature of the* State legislation nor widen the interpretation and effect to be given to that legislation. Section 1 of the Code of Civil Procedure, naming the courts of record of the State, gives an exclusive enumeration of the tribunals in which the provisions of the Code are to be applied. The Legislature had no power to prescribe by a code of practice or procedure rules for. any other tribunals,, for by the Constitution of 1846, as we have seen, the power is expressly declared to relate only. to the courts of record of this State, and in the nature of things it could relate to nothing but State courts.

For these reasons the judgment and order appealed from should be reversed and a new trial ordered,, with costs to appellant to abide the event.

Van Brunt, P. J., and Patterson, J., concurred; Ingraham and Hatch, JJ., dissented.