Much as this Court regrets the necessity of withdrawing from the plaintiff his right of action under the above set of facts, the action is barred, whether under the Kentucky statutes or the New York statutes. This point has been clearly and succinctly stated by Honorable Archie Dawson, Judge of the Southern District of New York, in an opinion reported as Colello v. Sundquist, on August 1, 1955, in 137 F. Supp. 649; see, also, Myers v. Slotkin, D.C., 13 F.R.D. 191. On the basis of that case, the motion of the defendant above named is granted for judgment on the pleadings, as there is no doubt that the Statute of Limitations was, as required by New York law, affirmatively pleaded at the time of defendant's answer of April 22, 1957.
]" The soundness of this holding was apparently questioned by the United States District Court in the case of Myers v. Slotkin (1952) 13 F.R.D. 191, where the court, in a diversity of citizenship case, in discussing the Drummy case supra, stated (p. 194): "If the question were before this court as one of first instance, consideration would have to be given the argument that in applying the Connecticut Statute of Limitations, the court should also apply the Connecticut law determined by the highest state court there, that in tolling the Statute of Limitations, the action is deemed to commence when service is made on the defendant." The court went on to hold that, as a federal court sitting in New York, it was bound, however, to follow the rule of the Drummy case, because of the rule that federal courts, when deciding questions of conflict of laws, must follow the rules prevailing in the states in which they sit.
Several district courts have stated that federal court plaintiffs may deliver a summons to the federal counterparts of the state officials designated in section 203(b)(5). See Levy v. Pyramid Co. of Ithaca, 687 F.Supp. 48, 53 (N.D. N.Y. 1988), aff'd without consideration of this point, 871 F.2d 9 (2d Cir. 1989), Gold v. Jeep Corp., 579 F.Supp. 256, 258 (E.D.N.Y. 1984); Aro v. Lictig, 537 F.Supp. 599, 600 (E.D.N.Y. 1982); Florence v. Krasucki, 533 F.Supp. 1047, 1050-51 (W.D.N.Y. 1982); Phoenix Mutual Life Insurance Co. v. Cervera, 524 F.Supp. 70, 72-73 (E.D.N.Y. 1981); Somas v. Great American Insurance Co., 501 F.Supp. 96, 97 (S.D.N.Y. 1980); Zarcone v. Condie, 62 F.R.D. 563, 568 (S.D.N.Y. 1974); Bratel v. Kutsher's Country Club, 61 F.R.D. 501, 502 (S.D.N.Y. 1973); Myers v. Slotkin, 13 F.R.D. 191, 194 (E.D.N.Y. 1952); Nola Electric Co. v. Reilly, 93 F.Supp. 164, 170 (S.D.N.Y. 1949). We agree with the rationale of these decisions.
See Levy v. Pyramid Co. of Ithaca, 687 F.Supp. 48, 53 (N.D.N.Y.), aff'd, 871 F.2d 9 (2d Cir. 1988); Gold v. Jeep Corp., 579 F.Supp. 256, 258 (E.D.N.Y. 1984) (allowing filing with federal court clerk in county outside New York City); Aro v. Lichtig, 537 F.Supp. 599, 600 (E.D.N.Y. 1982); Florence v. Krasucki, 533 F.Supp. 1047, 1050-51 (W.D.N.Y. 1982); Phoenix Mutual Life Insurance Co. v. Cervera, 524 F.Supp. 70, 72-73 (E.D.N.Y. 1981); St. Denis v. Somerset, No. 80-822 (N.D. N.Y. Oct. 7, 1981); Somas v. Great American Insurance Co., 501 F.Supp. 96, 97 (S.D.N.Y. 1980); Zarcone v. Condie, 62 F.R.D. 563, 568 (S.D.N.Y. 1974); Bratel v. Kutsher's Country Club, 61 F.R.D. 501, 502 (S.D.N.Y. 1973); Myers v. Slotkin, 13 F.R.D. 191, 194 (E.D.N.Y. 1952); Nola Electric Co. v. Reilly, 93 F.Supp. 164, 170 (S.D.N.Y. 1949). But see Cherpak v. Newell Manufacturing Corp., 720 F.Supp. 19 (E.D.N.Y. 1989) (section 203(b)(5) not applicable where plaintiff elects to bring state law claim in federal court).
Irons v. Michigan-Atlantic Corp., 279 App. Div. 32, 108 N.Y.S.2d 824 (1952). See Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y. 1952). New York itself does not consider its rule either to abridge or enlarge a cause of action. Under all these circumstances we conclude that Rule 3, Fed.R.Civ.P., is the proper measure of the commencement of this action for purposes of the statute of limitations and that therefore the action was timely commenced against Comad.
Every other court that has considered the issue has arrived at the same conclusion. Zarcone v. Condie, 62 F.R.D. 563, 568-69 (S.D.N.Y. 1974); Bratel v. Kutsher's Country Club, 61 F.R.D. 501, 502 (S.D.N.Y. 1973); Myers v. Slotkin, 13 F.R.D. 191, 194-95 (E.D.N.Y. 1952); Nola Electric Co. v. Reilly, 93 F. Supp. 164, 170-71 (S.D.N.Y. 1949). See Groninger v. Davison, 364 F.2d 638, 642 (8th Cir. 1966); Wheeler v. Standard Tool Mfg. Co., 311 F. Supp. 1177, 1179 n. 2 (S.D.N.Y. 1970).
28 U.S.C. § 570; Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y.1952); Nola Electric Co., Inc., v. Riley, 93 F.Supp. 164 (S.D.N.Y.); cert. denied sub nom., Riley v. Goddard, 340 U.S. 951, 71 S.Ct. 570, 95 L.Ed. 685 (1951).
Hereinafter "Marshal" will be used wherever there is statutory reference to "sheriff". See Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y. 1952); Nola Electric Co., Inc. v. Reilly, 93 F. Supp. 164 (S.D.N.Y. 1948), cert. denied, 340 U.S. 951, 71 S.Ct. 570, 95 L.Ed. 685 (1951). N.Y. CPLR § 6214(e) provides that "at the expiration of ninety days after a levy is made * * * or of such further time as the court, upon motion of the plaintiff, has provided, the levy shall be void except as to property or debts which the sheriff has taken into his actual custody, collected or received or as to which a proceeding under subdivision (d) has been commenced."
We are likewise constrained. Myers v. Slotkin, 13 F.R.D. 191 (E.D.N.Y. 1952). WHERE THE CAUSE OF ACTION AROSE
In view of the policy born in Guaranty Trust Co. v. York, supra, and revitalized in Ragan v. Merchants Transfer Warehouse Co., supra, the argument that the Federal Rules of Civil Procedure would control as to when this action was commenced must be rejected. Myers v. Slotkin, 13 F.R.D. 191 (D.C., 1952). It is clear that the predominant consideration in diversity cases is not that of drawing a fine line of distinction between "substance" and "procedure", but whether a suit involving state created rights will result in substantially the same outcome that it would had it been brought in the state court.