13 A.D.2d 866 (1961)

Jeanett M. Myers, as Administratrix of The Estate of George R. Myers, Deceased, Appellant, v. City of Plattsburgh et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 9, 1961

Inasmuch as plaintiff, in his lifetime, failed to commence an action to recover damages for his personal injury resulting from negligence, within three years after his cause of action accrued (Civ. Prac. Act, § 49, subd. 6), the causes of action sought to be prosecuted by his administratrix are barred, since a cause of action for personal injuries, once foreclosed by the statute, is not, upon death, revived in favor of the estate and the cause of action for wrongful death given by section 130 of the Decedent Estate Law is barred if the personal injury cause of action was outlawed in decedent's lifetime. (Kelliher v. New York Cent. & Hudson Riv. R. R. Co., 212 N.Y. 207; Johnson v. Stromberg-Carlson Tel. Mfg. Co., 250 App. Div. 352, affd. 276 N.Y. 621, cert. denied 305 U.S. 645.) Appellant does not dispute the applicability of the cases cited but considers that Kelliher (which Johnson followed) was not correctly decided and that New York should follow the contrary rule which has been adopted in certain other jurisdictions. Appellant's attorneys candidly recognize that if there is to be a new interpretation of section 130, it must be by the Court of Appeals.

Judgment unanimously affirmed, without costs.


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