Separate motions by the defendants Sherwood and Vickors to dismiss the complaint upon the ground that the cause of action did not accrue within the time limited by law for the commencement thereof, to wit: two years.
As I read the complaint the defendants are charged with willful and malicious interference with the plaintiff’s rights and not merely with negligence or malpractice. If this charge be true, the defendants’ responsibility for plaintiff’s imprisonment continued down to August 28, 1956, when he was finally set free from the jurisdiction of the Buffalo State Hospital and/or the Department of Mental Hygiene of the State of New York and the commissioner thereof.
As was stated by the Appellate Division of the Second Department in Brush v. Lindsay (210 App. Div. 361, 367), in an opinion written by Presiding Justice Kelly : ‘ ‘ With reference to defendants’ claim that plaintiff’s action is barred by the two-year Statute of Limitations (Civ. Prac. Act, § 50, supra), this depends upon the date when her cause of action accrued. If defendants’ liability terminated on the day plaintiff was committed to the hospital in 1910, it would appear that they are right in their contention. If, however, her imprisonment was illegal ab initio, the defendants’ wrongful acts were the cause of the loss of liberty, I think the illegal imprisonment constituted a new trespass every day it continued. The gist of the action for false imprisonment is the unlawful detention (Schultz v. Greenwood Cemetery, 190 N. Y. 276, 278), and certainly as to unlawful detention within two years before the commencement of the action she was not barred by the two-year Statute of Limitations.”
Inasmuch as personal service of process was made upon the defendant Sherwood on August 6, 1958 and upon the defendant Vickors on August 7, 1958, less than two years after plaintiff’s discharge as aforesaid, this action is timely. Both motions are, accordingly, denied, with leave to answer the complaint within 10 days of the service of a copy of the orders to be entered hereon.
Submit orders.