Opinion
October 24, 1949.
On October 25, 1944, decedent died because of the alleged negligence of appellants. On July 27, 1945, an action for wrongful death (not the present action) was commenced against appellants by his widow, as administratrix, etc. Actually the widow was not appointed administratrix until April 19, 1949. On May 2, 1949, the action was dismissed, but not on the merits. On May 3, 1949, the present action was commenced by the widow, as administratrix, etc. Appellants moved to dismiss the complaint on the ground that the present action was commenced over four years after the alleged wrongful death and the Statute of Limitations provided by section 130 of the Decedent Estate Law was a bar. Order denying motion to dismiss the complaint affirmed, with $10 costs and disbursements, with leave to answer within ten days from the entry of the order hereon. The action was timely commenced under the provisions of section 23 of the Civil Practice Act. ( Gibbons v. City of New York, 295 N.Y. 982; Boffe v. Consolidated Tel. Elec. Subway Co., 171 App. Div. 392, affd. 226 N.Y. 654.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur. [ 195 Misc. 566.]