Duryea v. Andrews — 12 N.Y.S. 42

Majority

p. 42

Duryea v. Andrews et al.

(Supreme Court, General Term, Second Department.

December 10,1890.)

Headnote

Limitation of Actions—Running of the Statute—Demand.

A horse stolen from plaintiff, the owner, came into possession of defendants, who retained it for several years, when plaintiff, on being informed that they had

p. 43

it, demanded it from them. Held, that the statutory limitation did not begin to run against an action by him against them for conversion until such demand; the possession, until the demand, was, in contemplation of law, in plaintiff, as the legal owner.

Appeal from circuit court, Queens county.

Action by Henry T. Duryea against William H. Andrews and George H„ Andrews for conversion of a horse. Defendants pleaded the statute of limitations of six years. It appeared that the horse was stolen from plaintiff in or before the year 1878, and in that year came into defendants’ possession. In 1889, plaintiff learned that defendants had the horse, and made a demand that they turn it over to him; and thereafter brought this action. From a judgment for plaintiff entered on the verdict of a jury, defendants appeal.

Argued before Dykhan and Pratt, JJ.

A. P. & W. Mann, for appellants. Edward Cromwell, for respondent.

The judgment in this action must be affirmed. The only defense interposed was that of the statute of limitations, and that statute did not begin to run until the demand for the delivery of the horse in question was made on December 10, 1889. The horse having been stolen, its possession until such demand was, in contemplation of law, in the plaintiff, as he was its legal owner.