p. 603(Supreme Court, General Term, Third Department.Headnote
Limitation of Actions—Mutual Account.Code Civil Proc. N. Y. § 386, provides that, “in an action brought to recover upon a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. ” Section 382 requires such an action to be brought within six years from accrual of the cause of action. Plaintiff and defendant had mutual accounts from 1876, when plaintiff ascertained a balance against defendant, and assigned same to secure a debt. There were no further dealings between the parties until 1884. In the meanwhile, prior to 1884, plaintiff procured a reassignment of his account against defendant, and instituted suit thereon in 1884. Held, that the accounts between plaintiff and defendant were closed by the assignment in 1879, and that the reassignment to plaintiff could not have the effect of reopening the account, so as to prevent the application of the statute.
Appeal from Warren county court.
Action by Robert H. Hall against John M. Stone to recover a balance due upon mutual accounts. Code Civil Proc. 3ST. Y. § 386, provides: “In an action brought to recover upon a balance due upon a mutual open and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.” Section 382 requires such an action to be brought within six years from accrual of cause of action. There was judgment for plaintiff, and defendant appeals.
Argued before Learned, P. J., and Landon and Mayham, JJ.Coyle & Cunningham, for appellant. S. H. Bevins, for respondent.
This action was commenced in justice’s court, January, 1889, to recover $25 for goods sold in a country store. The defendant pleaded payment, statute of limitations, and counter-claim for services of about the same amount. Plaintiff’s demand consisted of about 40 items; defendant’s, of 6. The case was tried before a jury, who rendered a verdict for plaintiff of $17.55. The defendant appealed to the county court, and that court affirmed the judgment. The defendant now appeals to this court.
The plaintiff’s items begin June 29, 1876, and end December 24, 1878, except as mentioned hereafter. • In February, 1879, the plaintiff made a balance of the account against defendant by crediting to defendant .certain cash and charges therein, which balance was $17.59: and in that month he made an assignment, and turned over the balance to the assignee. He did no business till June 1, 1879; and at some time, exactly when does not appear, the account, as he testifies, was assigned back to him. Since that time the only charge for goods sold on his books is in March 8, 1884, for a ham, $2.84. There is what is called a charge for 8 years’ box-rent, $4, which amount was specifically paid. This is not an.article sold by defendant, but appears to be for use of post-office box. The plaintiff claims by the charge for the ham to save the effect of the statute of limitations. By the assignment from the plaintiff in February, 1879, the mutual accounts between plaintiff and defendant (if such accounts ever existed) were closed.
p. 604The balance, whatever it was, became the property of the assignee. In the view most favorable to plaintiff, the statute of limitations began to run from December 24, 1878, the date of the last item in his account, and the right of action was barred in December, 1884. It was held in Green v. Ames, 14 H. T. 225, that where there is a mutual open and current account between parties, and one of them purchases from a third person, and holds an open account against the other, without notice to or recognition of its validity by the latter, it does not become a part of the mutual account between them within the statute of limitations; that the demand so purchased is barred in six years from the time it accrued to the assignor, though there existed a mutual account between the assignee and the other party. How, to apply that case to the present. Let us assume (which is not shown) that from June, 1879, down to March 8, 1884, there was a mutual account between these parties. In fact, the only account is the ham sold by plaintiff that last-mentioned day, and the defendant’s charges for horse hire. The plaintiff buys from some person whose name is not given, called “plaintiff’s assignee,” this balance of account of $17.50 against the defendant. Such balance, we have already seen, would be barred at least six years from February, 1879, if not from December 24, 1878. How, the plaintiff cannot by this purchase make that demand a part of his mutual accounts between himself and defendant, as is said in the case last cited. This must be true although the account so purchased by the plaintiff had once belonged to him. For by his assignment to his assignee it had ceased to be a part of the running and mutual accounts between him and defendant. It became the property of another person. The defendant did not continue to deal with the plaintiff with reference to a running account which no longer belonged to plaintiff. If, therefore, another running account arose between the parties, the plaintiff could not, by purchasing this old demand, make it a part of such running account. Of course, still less could he, by such purchase, save the running of the statute, if there really existed subsequently no mutual account. We may suppose that, when the plaintiff- assigned the balance alleged to be owing from defendant, defendant knew of this, or was notiQed of it. He knew then that there could no longer be dealings between him and plaintiff on the basis of and with reference to mutual accounts. The learned county judge distinguished this case from the one cited, on the ground that the assignment spoken of by plaintiff did not divest this title, but that the demand assigned was only security for his creditors. We do not see that the case shows what was the nature of the assignment of this account. But, if it was ah assignment for the benefit of creditors, still it transferred the title to the assignee, and closed the mutual accounts between plaintiff and defendant; and there is no evidence that, after the demand was reassigned to plaintiff, there was any recognition of it by the defendant, or any agreement between him and the plaintiff that it should be an item in the alleged running account. The plaintiff urges that, even if the claim assigned by the plaintiff is barred, still there must be an affirmance for the sum of $2.84, the price of the ham. But the recovery was for $17.55, while the amount of the balance assigned was $17.59. Evidently, therefore, there was no recovery for the ham. There are several other questions raised in this case which we deem it unnecessary to discuss. Judgments of county court and justice of the peace reversed, with costs. All concur.