Northrop v. Smith

Headnote

Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made June 23, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.

This action was brought to recover the value of two regis

tered United States bonds of $5,000 each, alleged to have been loaned to the firm of Smith, Clark & Co., of which defendants were alleged to have been partners. Defendant Smith alone answered.

The evidence on the part of defendant tended to show that more than six years before the action was commenced plaintiff demanded certain bonds, including at least one for $5,000, of Clark. Defendant’s counsel requested the court to charge the jury that if they believed plaintiff had demanded the bonds of Clark more than six years before the commencement of the action plaintiff could not recover. This was refused. Held, error; and that the error required a reversal, as the fact, if found made the Statute of Limitations an absolute defense.. (Code Civ. Pro., §§ 382, 410, 414.) The court say:

“A demand of one partner, while the firm was still in existence, was equivalent to a demand upon all.” (Hubbard v. Matthews, 54 N. Y. 43 , 50 ; BaA.nl v. Walker, 12 Barb. 298 ; Ball v. Ta/rkin, 3 E. D. Smith, 555; Abb. Trial Ev. 219 Am. and Eng. Ency. of Law, 528c.)”