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Taylor v. Loyal Order of Moose

Decided: December 21, 1965.

JAMES TAYLOR, PLAINTIFF,
v.
LOYAL ORDER OF THE MOOSE, LODGE NO. 913, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. HENRY SOKOLINSKY, TRADING AS HENRY VENDING CO., THIRD-PARTY DEFENDANT AND THIRD-PARTY PLAINTIFF, V. H. BETTE & SONS, INC., (IMPROPERLY PLEADED AS BETSON ENTERPRISES, INC.) AND FISHER SALES & MANUFACTURING CO., DEFENDANTS AND THIRD-PARTY DEFENDANTS



Feller, J.s.c.

Feller

Plaintiff instituted his action on December 6, 1963 against the Loyal Order of the Moose, Lodge No. 913; Henry Sokolinsky, trading as Henry Vending Co., and Fisher Sales & Manufacturing Co., for personal injuries allegedly resulting from certain equipment that was negligently maintained. It is alleged that plaintiff was an invitee on the premises operated by defendant Loyal Order of the Moose, and that it so negligently maintained the equipment as to cause injury to plaintiff. The second count of the complaint alleges that defendant Henry Sokolinsky owned the defective equipment and rented it to defendant Loyal Order of the Moose, and that he knew or should have known that the equipment was defective. The third count of the complaint alleges that defendant Fisher Sales & Manufacturing Co. manufactured the equipment in such a negligent and faulty manner as to cause the injury to plaintiff. The complaint alleges that the injury occurred on December 7, 1961.

Defendant Loyal Order of the Moose was granted leave on January 8, 1965 to join Sokolinsky, trading as Henry Vending Co., as a third-party defendant. Sokolinsky was granted leave on March 22, 1965 to join as third-party defendants Fisher Sales & Manufacturing Co. and Betson Enterprises, Inc. In the answer to the third-party complaint filed by Sokolinsky it appears that H. Bette & Sons, Inc. was incorrectly designated as Betson Enterprises, Inc.

On May 27, 1965 an order was entered dismissing the original complaint as to defendant Sokolinsky. Sokolinsky remains in this action as a third-party defendant joined by defendant Loyal Order of the Moose.

On June 18, 1965 plaintiff was granted leave to amend the complaint to include H. Bette & Sons, Inc., third-party defendant, as a defendant. In its answer to the amended complaint, H. Bette & Sons, Inc. (Bette) asserted as a defense that the plaintiff's cause of action accrued more than two years prior to the institution of the action against it and is therefore barred by the statute of limitations. Bette now moves for judgment on the pleadings.

The applicable statute is N.J.S. 2A:14-2 which provides that:

"Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued."

Before we can determine if the claim against Bette is barred by statute, we must determine when the statutory period expired and acted as a bar to further claims by plaintiff.

Plaintiff's cause of action accrued with the injury on December 7, 1961. Under applicable case law, he had until December 9, 1963 to file his complaint arising out of that injury. The principles to be followed in computing the time were set forth in detail in the case of Poetz v. Mix, 7 N.J. 436 (1951), wherein the court said:

"* * * It was early established in this State, in accordance with the prevailing view elsewhere, that in computing time under the statute of limitations the day on which the cause of action accrued is not to be counted. [Citations omitted] Therefore, since the plaintiff's cause of action in the instant case accrued on July 16, 1947, the two-year limitation period established by the statute was reached on July 16, 1949, which happened to be a Saturday. * * *

Although there is a diversity of opinion elsewhere, it is well settled in this State that where, by statute, an act is due arithmetically on a day which turns out to be a Sunday or legal holiday, it may be lawfully performed ...


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