Loomis v. Girard Fire & Marine Insurance , 256 A.D. 443 ( 1939 )

Bliss, J.

The action is upon a fire insurance policy for a loss which occurred on October 4, 1932. A summons in a prior action between the same parties was served on September 30, 1933, and the defendant duly appeared therein. On June 19, 1936, this action was dismissed because of the failure of the plaintiffs to serve their complaint. The present action was instituted on June 11, 1937, by the service of a summons and complaint. After issue was joined the defendant moved for summary judgment dismissing the complaint upon the ground that it is barred by the one-year Statute of Limitations contained in the policy. It is from the order granting this motion that the plaintiffs appeal.

Appellants urge that this action is saved by section 23 of the Civil Practice Act because it was commenced within one year from the termination of the prior action, which was, in turn, begun within the one-yeal’ limitation contained in the standard fire insurance policy here involved. The order entered in the former action stated that the action was dismissed. It was in substance a dismissal of the complaint for failure of service (Civ. Prac. Act, §257), as well as neglect to prosecute the action. Consequently the Statute of Jeofailes does not now help the appellants for one of the exceptions to the right to commence a new action for the same cause after the expiration of the time limited therefor and within one year after the termination of the prior action is a dismissal of the complaint for failure to prosecute the action.

The order and judgment should be affirmed, with costs.

Hill, P. J., McNamee, Crapser and Heffernan, JJ., concur.

Order and judgment affirmed, with costs.