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Classen-Smith v. National City Bank

290 N.Y. 70 Court N.Y. Decision date 1943-03-04 English

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p. 70
Nicolai Classen-Smith et al., Appellants, v. National City Bank of New York, Respondent.
Argued December 3, 1942;
decided March 4, 1943.
James F. Donnelly and Walter F. Sloan for appellants.
p. 71
Otey McClellan, MacIlburne Voorhies and Martin J. Cunningham for respondent.

Motion under rule 107, subdivision 6, of the Buies of Civil Practice for judgment dismissing the complaint upon the ground that the causes of action stated did not accrue within the time limited by law for the commencement of an action thereon. The complaint of the plaintiffs purports to state two separate alternative causes of action. Each contains allegations that a sum of money was deposited with defendant on behalf of the plaintiffs and that there has been a refusal of payment after demand made. Assuming, as we must for the purposes of this motion, that the facts are as pleaded, there

p. 73
may be no recovery if plaintiffs had actual knowledge for more than six years before action brought of the facts presented in the voluminous affidavits and documentary exhibits submitted to us. (Civ. Prac. Act, § 15; see Tillman v. Guaranty Trust Go., 253 N. Y. 295 .) Proof of such knowledge may depend upon the contents of a letter, a copy of which is attached both to the moving papers and to the papers in opposition. The copies differ slightly in wording. Each of the parties draws favorable inferences from the letter. We do not think that it is so conclusive against plaintiffs that it justifies a dismissal of the complaint under rule 107, subdivision 6, of the Buies of Civil Practice. (Transbel Investment Co. v. Venetos, 279 N. Y. 207 , 213.)

The judgment of the Appellate Division should be reversed and the order of Special Term” affirmed with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

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