
    Catherine Bannister, Appellant, v. The Michigan Mutual Life Insurance Company, Respondent.
    Fourth Department,
    March 7, 1906.
    Practice — action, on life insurance policy—error to dismiss complaint because answer sets out short Statute of Limitations—prior action in County Court discontinued because of lack oí jurisdiction—when such discontinuance voluntary under section 405 of the Code of Civil Procedure —when running of Statute of Limitations stopped during such prior action. . . .
    It is error to dismiss the complaint in an action to recover on a policy of life insurance because the answer sets out a one-yéar Statute of Limitations as to which the complaint is silent, although more than one year has elapsed since the death Of the insured. Matters of fact alleged in an answer are not to be regarded as admitted by the complaint for the purpose of a motion to dismiss such complaint. Proof of such allegations must be given.
    The plaintiff had begun a prior action on the policy in the County Court and discontinued the same on the defendant’s appearing specially to object to the jurisdiction on the ground that it was a foreign corporation. The objection was made five months after the death of the insured, but the plaintiff did not discontinue and bring her new action until more than one year after said death. As to whether or not the discontinuance was voluntary and as to the operation of the short statute under section 405 of the Code of Civil Procedure,
    
      Held (Spring and Mash, JJ.), that the purpose of said section is to prevent the running of the Statute of Limitations while an action is pending, and as the ' defendant had appeared specially and not on the merits, the discontinuance was forced and not voluntary. Hence, the time the action was pending should be deducted from the period, although the second action was not brought within one year from the death of the insured.
    (Kruse, J.): As the record is silent as to the grounds of the discontinuance id the County Court, it is not disclosed that the action was not terminated by voluntary discontinuance.
    (Williams, J.\ and McLennan, P. J.): As the defendant’s objection in the County Court was made five months after the death of the insured, and the plaintiff had allowed a year from the time of death to pass without discontinuing, she could not claim the protection of section 405 of the Code of Civil Procedure.
    Appeal by the plaintiff, Catherine Bannister, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 18th day of December, 1905, upon the dismissal of the complaint by-direction of the court after a trial at the Erie Trial Term. '
    
      
      William J. Hickey and Le Roy Parker, for the appellant.
    
      J. H. Metcalf, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the. event.'

The action is upon a policy insuring the life of one ¡Newkirk, the plaintiff being the beneficiary therein. The complaint was dismissed. upon the pleadings, and the only question is whether upon the facts alleged in the complaint, aided by any proper use of the allegations in the answer, it appeared conclusively that the' plaintiff could not maintain the action. The defense' held sufficient to defeat the plaintiff’s recovery was,, apparently, the one-year limitation, founded upon the agreement of the parties as expressed in the policy.

The dismissal could not - be based upon the complaint alone, because such limitation was a matter of defense. • The defendant ■might raise the question bv its answer or, by failing to so raise it, waive the same: It was proper, therefore, for the court to. look into the answer to see that the question was properly raised. - This was,, however, the only proper use that Could be made of the answer in determining the motion for dismissal. The matters of fact alleged in the answer were not to be regarded as admitted by the plaintiff, for the purposes of the' motion. In order to establish the same, evidence would need to.be given. The error in the decision of the court was assuming as true the allegation in the answer that there had been a One-year limitation fixed by the policy. Thé allegation was that upon the back of the policy was the clause or condition following: “ No suit, arising out of this contract shall be begun more than one year from the death of the. insured.” There was no . allegation relating to this limitation in the complaint, and the policy Was not annexed thereto ói made a part thereof. The alie-' gation in the answer did not establish the fact. If the defendant gave any proof to support the allegation, the plaintiff might controvert it, and make the question one for a jury." The Court could Hot assume it to be true, in the absence of proof, and no proof was given. .'■■■■„'

It appeared that the insured died July 23, 1903, and that this ■ action was not commenced until October 4, 1904, more than a year after the death. These allegations were found in the complaint. The judgment must, however, be reversed because it did not appear by the complaint that any one-year limitation had been agreed upon by the parties in the policy.

Another question is raised by the plaintiff, which we should con-, sider here, as it may be again presented upon the new trial. The complaint alleged that an action was first brought upon the policy December 3, 1903, in the County Court of Erie county; that on December 23, 1903, the defendant appeared specially in that action and objected to the jurisdiction of the County Court, on the ground that the defendant was a foreign corporation; and that thereafter, and on September 27, 1904, the plaintiff took an order in said County Court discontinuing that action, and soon after commenced the present action, as hereinbefore stated.

Section 405 of the Code of Civil Procedure provides: If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”

The plaintiff claims protection under this statute, on the ground that the discontinuance of the first action was not voluntary; that the County Court had jurisdiction of the subject-matter of the action, and would have had jurisdiction of the person of the defendant but for its objection thereto; that the plaintiff was compelled to discontinue the action by the objection interposed by the defendant. The objection to the jurisdiction of the County Court was made only five months after the death. The plaintiff knew then as well as she did nine months later that she could not maintain the action in County Court, but instead of then discontinuing her action and commencing one in Supreme Court, she waited until more than a year after the death, and then discontinued the first action and brought this one. Under these circumstances certainly it could not be held that the discontinuance was compelled, or Was otherwise than voluntary. The plaintiff would not, therefore', be .'entitled to any protection under the section of the Code referred to.

McLennan, P. J., concurred; Spring and Mash, JJ., concurred in first ground only, in memorandum by Spring, J,; Kruse, J., concurred in separate memorandum.

Spring, J.

(concurring):

I.eoncur in the conclusion reached in the prevailing opinion, but dissent from the second ground contained therein,

• The plaintiff commenced her action within the time and . the County Court had jurisdiction of the subject-matter. The 'defendant, however, interposed the defense, that it.was a foreign corpora-' fion and this ousted the court of jurisdiction.- The plaintiff,., appreciating that if she' entered upon the trial a dismissal of her complaint was Inevitable, elected to discontinue. • In the meantime the year’s limitation prescribed in the policy had passed.- She Commenced another action in the Supreme Court and the complaint was dismissed^ we may assiime, because the action Was not Commenced within the year and the termination of the preceding action Was a “ voluntary discontinuance ” Within the meaning of section 405 óf" the Code of Civil Procedure. - .

The purpose of section 405 is to prevent the Statute Of Limitations running while an action is pending. If'the .action- is disposed of on the merits,-or if the plaintiff .of his own motion elects'to relinquish his claim^the section does not. apply. In this.case; the plaintiff was forced to discontinue.. The defendant could have appeared generally and the case .thus been disposed of -on the merits. It availed itself of its privilege to appear specially and set up the’ defense that it was a non-resident, which was true. By virtue of this plea the plaintiff could hot secure a- trial on the merits: If she had allowed the case to .go to' trial and'a dismissal had followed, • Unquestionably "section 405 would have beCn applicable and she eotild have sued over even though the first action had been pending-for .two years or more. ' ' .. •. •

If her original , action- had been Commenced' eleven- months - and twenty days after the cause of action had accrued and. the defendant’s answer had been interposed after the year had run, a discontinuance in these circumstances would not have been voluntarily-made.

The fact that the plaintiff discontinued the action does not necessarily imply that it was voluntarily done. The defense interposed was complete and a termination of the action either by dismissal at the trial or by the election of the plaintiff without the formality of a useless trial was inevitable. The plaintiff chose to adopt the course which was the least expensive' and would be best apt to facilitate the trial on the merits. She did not discontinue with the view of ending the action ; she did not discontinue voluntarily in the sense of abandoning her cause. She was driven to stop temporarily because the defendant declined to submit the case to the County Court. '

The plaintiff waited several months before discontinuing. The delay does not alter the question. If the discontinuance was not voluntary within the fair meaning of section 405 she could sue over, provided^ a year had not intervened since the cause of action accrued after deducting the time the first action was pending.

Nash, J., concurred.

Kruse, J.,

(concurring):

I concur in reversing this judgment upon the first ground. As regards the other question discussed in'the opinion my view is, that the record does not disclose that the action in the County Court was not terminated by a voluntary discontinuance, it not appearing that the plaintiff discontinued the action upon any tenable objection made by the defendant to the jurisdiction of the court. Neither the grounds of . the objection nor the manner in which'the objection was raised is made to appear. It is not stated that the plaintiff was compelled to discontinue the action because the County Court did not have jurisdiction or even that she discontinued the action upon that ground. .

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only,, the facts having been examined and no error found therein.  