Opinion · New York Court of Appeals
Gundershein v. Bradley-Mahony Coal Corp.
Gundershein v. Bradley-Mahony Coal Corp., 295 N.Y. 539 (New York Court of Appeals 1946)
- Type
- Opinion
- Court
- New York Court of Appeals
- Jurisdiction
- New York
- Date
- 1946-07-23
- Topic
- general
Per Curiam. The judgment dismissing the prior action brought in behalf of the infant plaintiff was ordered because of failure of diligent prosecution by the guardian ad litem. *541 Since that judgment was not rendered upon the merits, it does not prevent the present action for the same cause of action (Civ. Prac. Act, § 482). Hence the present action, which was commenced within the period of the plaintiff’s infancy, is not barred by the Statute of Limitations (Civ.
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The judgment dismissing the prior action brought in behalf of the infant plaintiff was ordered because of failure of diligent prosecution by the guardian ad litem. *541 Since that judgment was not rendered upon the merits, it does not prevent the present action for the same cause of action (Civ. Prac. Act, § 482). Hence the present action, which was commenced within the period of the plaintiff’s infancy, is not barred by the Statute of Limitations (Civ. Prac. Act, § 49, subd. 6; § 60, subds. 1, 3).
The judgments should be reversed and the motions denied, with costs in all courts.
Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Fuld, JJ., concur.
judgments reversed, etc.