Downs v. Wells' Adm'rs — 14 N.Y.S. 566

Majority

p. 566

Downs v. Wells’ Adm’rs.

(Supreme Court, General Term, Second Department.

May 11, 1891.)

Headnote

Limitation of Actions—Runnino of Statute.

In 1864 one T. gave a note to W., who was .to collect the same, and divide the amount between himself, plaintiff, and others. W. died in 187-1, without having paid plaintiff’s share of the note, and in 1885 plaintiff sued W.’s administrators for the same. Held, that plaintiff’s claim was barred by limitation.

Appeal from Suffolk county court.

Action by Oliver Downs against Maria Wells, and William Wells as administrator of the estate of Benjamin F. Wells, deceased, to recover $22.50 and interest, plaintiff’s share of a note for $112.50, given by one Phineas Tuthill to said Benjamin F. Wells for the benefit of plaintiff, Wells, and three others. During the civil war plaintiff, defendants’ intestate, and six others, entered into an agreement for protection against the draft for military service. Three out of the eight parties to the arrangement were drawn, and it required $900 or $112.50 for each party to excuse the parties drawn from such service. Each party paid his proportion ($112.50) except Phineas Tuthill, who was unable to make the payment. Thereupon five of the parties, among whom were plaintiff and Wells, paid the share of Tuthill by contributing $22.50 each. Tuthill then (January 1, 1864) gave a note for $112.50 to Wells for the benefit of the parties who paid his share. Wells died in 1871, and in 1885 plaintiff sued his (Wells’) administrator for plaintiff’s share in the Tuthill note. The complaint was dismissed, and plaintiff appeals.

p. 567

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Daniel W. Deem, for appellant. Payne & Benjamin, for respondents.

In the month of January, 1864, Phineas Tuthill made a promissory note for $112.50, which was left with the defendants’ intestate, who, with four others, including the plaintiff, were equally interested in the note. The defendants’ intestate died in September, 1871, and they were appointed his administrators soon after his death. Phineas Tuthill died in August, 1888, and this action was commenced about two years thereafter, for the recovery of the plaintiff’s share of the Tuthill note. A trial was had in the county court of Suffolk county, and the plaintiff recovered a verdict. From the judgment entered upon the verdict the defendants appealed to the general term of this court, where the judgment was reversed, and a new trial ordered. A new trial has now been had, and at the close of the plaintiff’s ease his complaint was dismissed, upon the ground that the action was barred by the statute of limitations, and the plaintiff has again appealed to this court. The case shows plainly that the claim is barred by the statute of limitations, and the judgment should be affirmed, with costs.