Better v. Prudential Insurance — 32 N.Y. St. Rep. 686

Majority

p. 686

Max Better, Resp’t, v. The Prudential Insurance Co., App’lt.

(New York Common Pleas, General Term

Filed July 18, 1890.)

Headnote

-1. Master and servant — Money deposited as security — Limitation op RIGHT TO RECOVER.

Plaintiff was employed by defendant as collector, and deposited money as security for faithful performance of duty. By the terms of the agreement, it was stipulated that plaintiff should commence no action until ten days after service on defendant of a written statement of the particulars and amount of plaintiff’s claim. No such notice was given before this action to recover the moneys deposited was commenced. Held, that the action could not be maintained.

'2. Same.

The agreement also provided that no suit should be brought against defendant by reason of any matters arising thereunder after six months from the time plaintiff left defendant’s employ. Held, that the parties had a right to fix a shorter limitation than that provided by statute, and that the same was valid and binding upon them.

Appeal from a judgment rendered in the district court of the •city of New York for the fourth judicial district.

H. G. Kudlich, for resp’t; J. Fennell, for app’lt

This action was brought to recover “ money deposited as security ” for plaintiff’s faithful performance of his duty as a collector for the defendant.

Various grounds for the appeal were argued, but it is necessary to notice two of them only. By the terms of the agreement between the parties it was expressly stipulated that the plaintiff .should commence no action either at law or in equity until ten days after service on the president or secretary of the defendant of a written statement of the particulars and amount of the plaintiff’s claim against the defendant. There is no claim that this agreement was entered into through any fraud on the part of the defendant. It was reasonable in itself and if plaintiff did not understand it when he entered into it, it was his own fault, and this court cannot relieve him in that respect. No such notice was given, as appears from the return, until after the commencement of the action.

In the written agreement it was also expressly stipulated that no suit should be brought against the defendant by reason of any matters arising thereunder after six months after the time of the plaintiff leaving defendant’s employ. It is clear from the evidence that this action was not commenced within that time. Plaintiff’s counsel claims that such a limitation is not valid in view of the general statutes in relation to the limitation of actions, but we ■cannot agree with him. By § 414 of the Civil Code, it is expressly provided that a shorter time may be agreed upon by a contract in writing. And in Wilkinson v. First National Fire Ins. Co., 72 N. Y., 501 -502, and cases there cited, it was held that “ it

p. 687

is well-settled, that the parties to a contract may provide for a shorter limitation to actions thereon than that fixed by the general law. Such an agreement is not expressly or impliedly prohibited by the general statute of limitations, and is consistent with the policy upon which the statute is founded.”

We, therefore, think the judgment should be reversed, with costs to the appellant.

Allen, J., concurs.