Maguire v. Yellow Taxicab Corp.

Dore, J.

(dissenting). The designation provided for in section 52 of the Vehicle and Traffic Law of the Secretary of State as true and lawful attorney on whom a summons may be served against a non-resident operating a motor vehicle on a public highway in this State is, under section 19 of the Civil Practice Act, “ a designation made in pursuance of law of a resident of the State on whom a summons may be served.” The provisions of section 52 enable a resident who desires to sue such non-resident to start the action 1 as promptly as if the non-resident were here or as if he had in writing expressly designated a person resident here on whom process could be served for him. The designation “ remains in force ” as long as section 52 remains a part of the statutory law of the State.

Under the construction of the majority of the court, in spite of the clear provisions of section 52 of the Vehicle and Traffic Law and section 19 of the Civil Practice Act, a resident of this State may delay, as these plaintiffs have done for three years — or, under the rule announced, for five, ten or even twenty years — and then commence an action by serving the Secretary of State and for the first time apprise a defendant of the claim when all likelihood of securing witnesses or preparing a defense has been lost by lapse of time. To prevent such unjust results statutes of repose or limitation have been enacted. No reason is shown on principle why the salutary purposes of the statutes should not apply.

The time of a continuous absence from the State is not part of the time limited for the commencement of an action for the reason that it is impossible because of the absence to obtain service. In this case plaintiffs at all times could obtain service by virtue of section 52. That section was enacted subsequent to the adoption of section 19 of the Civil Practice Act and granted a privilege not theretofore existing in favor of a plaintiff; with this privilege there is an accompanying obligation of serving the Secretary of State within the usual time limited by statute.

Where the provisions of section 52 are applicable, it should be considered that the Statute of Limitations runs from the date of the accident because from that moment the defendant is by statute always available for service within this State as much as any resident of the State.

Accordingly I dissent and recommend that the judgment and order appealed from be affirmed, with costs.

Martin, P. J., concurs.

Judgment and order reversed, with costs, and the motion denied.