Dunning v. Dunning — 300 N.Y. 341

Majority

p. 341

Lillian I. Dunning, Respondent, v. Frank E. Dunning, Appellant.

Argued January 11, 1950;

decided March 2, 1950.

R. Waldron Hemberg and R. Monell Herzberg for appellant.

I. Plaintiff’s claims are barred by the Statute of Limitations. (Civ. Prac. Act, § 47; Chapin v. Posner, 299 N. Y. 31 ; Clayburgh v. Clayburgh, 261 N. Y. 464 .) II. Plaintiff wife was under no disability to sue her husband and it was not against public policy for her to dó so. (Fowler v. Wood, 78 Hun 304 , 150 N. Y. 584 ; Wright v. Wright, 54 N. Y. 437 ; Acker v. Acker, 81 N. Y. 143 .) III. No explanation was given to show why the notes were not presented within the time provided by statute. (Greenwich Bank v. Hartford Fire Ins. Co., 250 N. Y. 116 ; Commercial

p. 342

Nat. Bank v. Zimmerman, 185 N. Y. 210 ; McNee v. Ring, 159 Misc. 698 .) IV. Both the Statute of Limitations and the presentation for payment were sufficiently raised by the pleadings.

William E. J. Connor and Morris Millman for respondent.

I. Since the Statute of Limitations is an affirmative defense which must be both specifically pleaded and proven, and since said statute was at no time pleaded, it is no bar to this action. (Richardson v. Gregory, 219 App. Div. 211 ; Schenck v. State Line Tel. Co. 238 N. Y. 308 ; Hayden v. Pierce, 144 N. Y. 512 ; Titus v. Poole, 145 N. Y. 414 ; Hamilton v. Royal Ins. Co., 156 N. Y. 327 ; Dunkum v. Maceck Bldg. Corp., 227 App. Div. 230 ; City of Buffalo v. County of Erie, 88 Misc. 591 , 171 App. Div. 973 , 220 N. Y. 620 ; People ex rel. City of Tonawanda v. Fitzhenry, 170 App. Div. 227 ; Minzesheimer v. Bruns, 1 App. Div. 324 .) II. Plaintiff presented the notes for payment within a reasonable time. (Commercial Nat. Bank v. Zimmerman, 185 N. Y. 210 ; McNee v. Ring, 159 Misc. 698 ; Zaloom v. Ganim, 72 Misc. 36 , 148 App. Div. 892 ; Matter of Taylor, 174 Misc. 457 .) III. In view of the fact that the State of New York tas adopted the Uniform Negotiable Instruments Law as its own, the public policy of this State should conform with the public policy of all other States adopting the Negotiable Instruments Law that the Statute of Limitations does not apply between husband and wife with respect to negotiable instruments. (Morrish v. Morrish, 262 Pa. 192 ; Bennett v. Finnegan, 72 N. J. Eq. 155 ; Gray v. Gray, 39 N. J. Eq. 511 ; Metlar v. Williams, 86 N. J. Eq. 330 ; Fawcett v. Fawcett, 85 Wis. 332 ; Campbell v. Mickelson, 279 N. W. 73 ; Stockwell v. Stockwell’s Estate, 92 Vt. 489 ; Matter of Bonfield, 299 P. 323 .)

The suit is on twelve promissory notes, all

payable on demand, given by defendant, to plaintiff, his wife, on various dates in 1929, 1931 and 1932, the complaint further alleging that payment of all the notes was demanded in June, 1947, but that no payment was ever made. It appears by a stipulation, hereafter referred to, that the parties separated in May, 1947. The answer admits the making and delivery of the instruments, and, besides that admission and an alleged defense later abandoned, contains only this: “ III. That presentment for payment of each of said twelve promissory notes

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payable on demand was not made within a reasonable time after issue as the said notes were issued between November 18, 1929, and March 26, 1932, and demand for payment of each of said twelve promissory notes was not made until June 3, 1947.”

The record on appeal, presented to the Appellate Division and to this court, omits the testimony taken on the trial, but does contain an oral motion to dismiss made at the trial, some colloquy thereon, and a stipulation of facts, entered into after there had been a decision and judgment in favor of plaintiff, and after defendant had appealed therefrom to the Appellate Division. Since the record thus certified to us contains neither a pleading of the Statute of Limitations nor a motion to dismiss on that ground (see Civ. Prac. Act, §§ 242, 261; Rules Civ. Prac., rule 107; and Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290 , 295), nor a waiver by plaintiff of defendant’s failure to raise such a defense, we agree with the Appellate Division that, on this record, no such defense was available to defendant.

Since the Statute of Limitations could thus play no part in the decision, it is unnecessary, strictly speaking, for us to comment on the statement in one of the opinions below (citing cases in other States) that the Statute of Limitations does not run in favor of one spouse as against the other while they are living together. However, we point out that no such exception is found in article 2 of the Civil Practice Act, or elsewhere in our statutes, and the creation thereof is beyond the power of any court (see Mack v. Mendels, 249 N. Y. 356 , 359, citing Ruggies v. Keeler, 3 Johns. 263 ; Taylor v. New York Central R. R. Co., 294 N. Y. 397 , 402, certiorari denied 326 U. S. 786 ; Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119 , 125; Arnold v. Mayal Realty Co., 299 N. Y. 57 , 60; Chapin v. Posner, 299 N. Y. 31 , 41). Quite obviously, too, a refusal to apply time limitation statutes between husband and wife would be inconsistent with the New York Married Women’s Property Act (see Civ. Prac, Act, § 200; Domestic Relations Law, §§ 50, 51; Winter v. Winter, 191 N. Y. 462 , 467).

The answer, as quoted above, pleads as a defense, that presentment for payment of these notes was not made within a reasonable time, and there is some discussion in one of the opinions below as to whether or not more than a reasonable time elapsed, in this situation, between issue and presentment.

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So that our affirmance here will not be misunderstood, we point out that presentment for payment is not necessary to charge a person who, like defendant here, is primarily' liable on the instrument (Negotiable Instruments Law, §§ 3,110, 130; Locklin v. Moore, 57 N. Y. 360 , 362; Baldwin’s Bank v. Smith, 215 N. Y. 76 , 79).

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ., concur.

Judgment affirmed.

Cases cited

Chapin v. Posner 299 N. Y. 31 N.Y. 1949-03-03 at 41 p. 341, p. 343
Clayburgh v. Clayburgh 261 N. Y. 464 N.Y. 1933-04-11 p. 341
Wright v. Wright 54 N. Y. 437 N.Y. Comm'n App. p. 341
Acker v. Acker 81 N. Y. 143 N.Y. 1880-06-01 p. 341
Greenwich Bank v. Hartford Fire Insurance Co. of Hartford 250 N. Y. 116 N.Y. 1928-12-31 p. 341
Commercial National Bank v. Zimmerman 185 N. Y. 210 N.Y. 1906-05-15 p. 342
McNee v. Ring 159 Misc. 698 N.Y. Sup. Ct. 1936-02-29 p. 342
Schenck v. State Line Telephone Co. 238 N. Y. 308 N.Y. 1924-06-03 p. 342
Hayden v. Pierce 144 N. Y. 512 N.Y. 1895-01-29 p. 342
Titus v. Poole 145 N. Y. 414 N.Y. 1895-04-09 p. 342
Hamilton v. Royal Insurance Co. of Liverpool, England 156 N. Y. 327 N.Y. 1898-06-07 p. 342
City of Buffalo v. County of Erie 88 Misc. 591 N.Y. Sup. Ct. p. 342
City of Buffalo v. County of Erie 220 N. Y. 620 N.Y. 1917-02-09 p. 342
People ex rel. City of Tonawanda v. Fitzhenry 170 App. Div. 227 N.Y. App. Div. 1915-12-01 p. 342
Minzesheimer v. Bruns 1 App. Div. 324 N.Y. App. Div. 1896-02-07 p. 342
Zaloom v. Ganim 72 Misc. 36 N.Y. App. Term at 148 p. 342
In re the Estate of Taylor 174 Misc. 457 N.Y. Sur. Ct. 1940-06-19 p. 342
Nasaba Corp. v. Harfred Realty Corp. 287 N. Y. 290 N.Y. 1942-01-15 at 295 p. 343
Mack v. Mendels 249 N. Y. 356 N.Y. 1928-11-20 at 359 p. 343
Ruggles v. Keeler 3 Johns. 263 N.Y. Sup. Ct. p. 343
Taylor v. New York Central Railroad 294 N. Y. 397 N.Y. 1945-07-19 at 402 p. 343
Gregoire v. G. P. Putnam's Sons 298 N. Y. 119 N.Y. 1948-07-16 at 125 p. 343
Arnold v. Mayal Realty Co. 299 N. Y. 57 N.Y. 1949-04-14 at 60 p. 343
Winter v. Winter 191 N. Y. 462 N.Y. 1908-03-31 at 467 p. 343
Locklin v. Moore 57 N. Y. 360 N.Y. Comm'n App. at 362 p. 344
Baldwin's Bank of Penn Yan v. Smith 215 N. Y. 76 N.Y. 1915-05-25 at 79 p. 344

Statutes and regulations cited

Domestic Relations Law p. 343