Downs v. Wells — 39 N.Y. St. Rep. 40

Majority

p. 40

Oliver Downs, App’lt, v. Maria Wells et al., Adm’rs, Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Limitations—When statute begins to bun.

In 1864, one T. gave his note to W. for the benefit of plaintiff, W. and others. W. was to collect the same and divide the amount among those entitled. In 1871 W. died, without bavins paid to plaintiff his share of the note, and in 1885 an action was begun against his administrators to recover plaintiff’s share. Held, that the claim was barred by the statute of Imitations

p. 41

Appeal from a judgment of Suffolk county court dismissing the complaint.

Daniel W Reeve, for app’lt; Payne & Benjamin, for resp’ts.

—In the month' of January, 1864, Phineas Tut-hill 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, 1883, 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 case 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.

Barnard, P. J., and Pratt, J., concur.