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BERTHA BLDG. CORP. v. NATIONAL THEATRES CORP.

October 15, 1958

BERTHA BUILDING CORPORATION, Plaintiff,
v.
NATIONAL THEATRES CORPORATION, Defendant



The opinion of the court was delivered by: ZAVATT

This is a civil anti-trust action instituted in this Court by a California corporation upon an alleged cause of action, which, the plaintiff concedes, accrued in California no later than July 4, 1935. The complaint was not filed until September 5, 1951. The plaintiff pleaded the following statutes of limitations as being pertinent herein:

(1) Section 48 of the New York Civil Practice Act, providing:

' § 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.'

 (2) Section 19 of the New York Civil Practice Act, providing:

 ' § 19. Effect of defendant's absence from state or residence under false name. If, when the cause of action accrues against a person, he is without the state, the action may be commenced, within the time limited therefor, after his coming into or return to the state. * * * But this section does not apply in either of the following cases:

 '2. While a foreign corporation has had or shall have one or more officers or other persons in the state on whom a summons for such corporation may be served.'

 (3) Section 13 of the New York Civil Practice Act, providing:

 ' § 13. Limitation where cause of action arises outside of the state. Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the cause of action arose, for bringing an action upon the cause of action, * * *.'

 (4) Paragraphs 335 and 338 of the West's Ann.Code of Civil Procedure of the State of California, providing, as set forth in the complaint:

 'Paragraph 335. Periods of Limitation Prescribed: The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:

 'Paragraph 338. (Within Three Years). Within three (3) years: 1. An action upon a liability created by statute, other than a penalty or forfeiture.'

 (5) Paragraph 351 of the West's Ann.Code of Civil Procedure of the State of California, providing, as set forth in the complaint:

 'Paragraph 351. Exception, where Defendant Is Out Of The State. If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the time herein limited, after his return to the state and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.'

 The plaintiff alleged that the defendant was not amenable to suit in California since the accrual of the cause of action, and that the defendant was without the State of New York at all times since the accrual of the cause of action, and, prior to December 16, 1949, did not have one or more officers within the State of New York, nor did it designate a resident of the State of New York upon whom a summons may have been served. The complaint further alleged that on or about July 20, 1938, the United States of America filed a petition in equity under the anti-trust laws of the United States in the United States District Court for the Southern District of New York (hereafter referred to as the Paramount action) against the defendant and others to enjoin and restrain the acts complained of in the instant action. United States v. Paramount Pictures, 85 F.Supp. 881. It was alleged that the Paramount action was still pending against the defendant at the time of the filing of the complaint in the instant action, and that the running of the statute of limitations in respect of the instant cause of action was suspended during the pendency of the Paramount action by virtue of Title 15, United States Code, Section 16, which provided at the time of the filing of the complaint:

 '* * * Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the anti-trust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof.'

 The defendant's answer set up the following as affirmative defenses:

 'Third Separate and Affirmative Defense

 'Plaintiff's claim, if any, is barred by Section 13 of the New York Civil Practice Act and the statutes of ...


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