Blake v. Clausen — 41 N.Y.S. 772

Majority

p. 772

BLAKE v. CLAUSEN.

(Supreme Court-, Appellate Division, First Department.

November 13, 1896.)

Headnote

Statute of Limitations—Liability op Trustees fob Debts of Corporation.

The statute of limitations begins to run in favor of trustees who are liable for corporate debts because of their failure to file an annual statement (Laws 1875, c. 510) fro’m the time the debt first became due and enforceable by action, and is not suspended by subsequent extensions, granted without the consent of the trastees. 38 N. Y. Supp. 514 , affirmed.

Appeal from trial term, New York county.

Action by Israel C. Blake against George C. Clausen. The complaint was dismissed on the merits, after a trial by the court without a jury ( 38 N. Y. Supp. 514 ), and plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

Philip Carpenter, for appellant.

Samuel Untermyer, for respondent.

The action was brought to charge the defendant, as trustee of the Brewers’ Ice Company, with liability upon a claim of $6,000, the amount of a loan made by plaintiff to the. company on December 22, 1888, for failure of the company to file" its annual report. All the allegations of the complaint are admitted by the answer. The sole defense is the statute of limitations. A six months’ note was given for the loan, which became due June 25, 1887. On that day a renewal note was given, which became due October 28, 1887. This latter note was allowed to run along without renewal from the date of its maturity, October 28, 1887, until April 2, 1888, when a new note was given, due in April, 1889; and then the final note was given, due April 5, 1890. This latter date is the" one from which the appellant insists the three-years statute of limitations began to run. All that need to be added to the opinion of the learned trial judge is that if we should not hdld the statute as beginning to run at the date of the maturity of the first note, in June, 1887, and assume that, by the renewal of the note and the extension until October 28, 1887, the running of the statute was suspended for that intervening period, then, clearly, the debt was due, and the plaintiff could have enforced the liability on October 28, 1887. As stated, from that date until April 2, 1888, while there is evidence tending to show that there was an oral extension, no note was given therefor, and the plaintiff was at liberty at any time during that period to commence an action, and enforce the debt against the corporation. An action, however, upon that note, which matured October 28, 1887, is equally barred by the statute of limitations, for the statute then commenced to ru i;'' &nd, if once set in motion, it could not be stayed or suspended by thp new n°te which was given in April, 1888. Apart, therefove, from the question whether the statute commenced to run when..-the first note~Jnafured, we think it clear that, if it did comIhSSce to run in October;-1887,< and thereafter was not suspended,

p. 773

the action, not having been brought within three years thereafter, ivas barred. The judgment was right, and shoúld be affirmed, with costs. All concur.