The opinion of the court was delivered by: BYERS
This is a defendant's motion to dismiss the complaint for failure to state a claim, etc., pursuant to Rule 12(b), Fed.Rules Civ.Proc., 28 U.S.C.A., on the ground that the action is barred by limitation.
The cause as pleaded arises under the applicable provisions of the Selective Training and Service Act of 1940 as amended, having to do with the reemployment of veterans after their discharge from the Armed Forces of the United States.
The following facts are deemed to be true:
(1) On January 25, 1943 the plaintiff, having been previously employed by the defendant as a checker-driver, left that employment to enter the United States Army, and received an honorable discharge and was separated from that service on or about November 4, 1945.
(2) On or about November 12, 1945 he appeared at his place of employment and applied for restoration of his former position or to a position of like seniority, status and pay, within the purview of the Act (Title 50 U.S.C.App. § 308).
This was clearly within the ninety day period specified in the statute in subdivision (b).
(3) Plaintiff's application was not approved and he was not employed by the defendant until sometime in 1947 when he was hired 'as a new man, in a position as laborer, instead of the old job he had held prior to induction.' The foregoing is taken from the plaintiff's affidavit in opposition to this motion.
This complaint was filed on February 21, 1957 over eleven years after his application for reinstatement as above set forth, and the question for decision on the motion is whether his cause is barred by limitation.
The statute itself contains no period of limitation for commencement of such an action, and the plaintiff's argument, if understood, is that there is no such limitation and consequently this court is open to a plaintiff at any time, however long it may be after he has unsuccessfully sought to induce his employer to comply with the provisions of the Act.
It is difficult to see how this can be so, for reasons which must be apparent.
Fortunately the subject has been examined and discussed in the case of Delman v. Federal Products Corporation, D.C.R.I., 136 F.Supp. 241. That case cannot be distinguished from this in any essential respect, although the delay involved in the institution of that cause was something over eight years. Judge Day said that in the absence of a statutory period of limitation, the State Statute of Rhode Island would be deemed to control, namely, six years after the accrual of the cause of action.
The reasoning of that opinion is convincing so far as this court is concerned, and since this plaintiff is a resident of the State of New York, a like process points to the applicability of the statutory limitation provisions of the New York Civil Practice Act, namely:
'48. Actions to be commenced within six years. The following actions must be commenced within six years after the cause of action has accrued:
'2. An action to recover upon a liability created by statute, except a penalty or forfeiture.'
Seemingly it is argued for the plaintiff that his cause of action did not arise until sometime during the months of October or November of 1956 because he sought departmental assistance by reason of the said refusal to reinstate. He argues that the refusal to reinstate did not become final until 1956 when, in the course of the departmental hearing, records ...