Davison v. Budlong — 47 N.Y. Sup. Ct. 245

Majority

p. 245

JOHN W. DAVISON and VIOLET BUDLONG, as Committee, etc., of NELSON BUDLONG, a Supposed Lunatic, Respondents, v. ROBERT P. BUDLONG, LEROY BUDLONG and JEREMIAH KINNE, Appellants.

Headnote

Statute of limitations — when the right to sue on a note accrues — when the serviee ■ upon one defendant prevents the statute from running as to the others — Code of Civil Procedure, secs. 399, 400.

On September 17, 1884, the summons in this action, brought upon a promissory noto made by the defendants Budlong, and indorsed by the defendant Kinne, which fell due on September 18, 1878, was issued by a justice of the peace of the town of German Plats, with a verified complaint annexed. On September eighteenth the summons was personally served on Kinne, at the town of German Plats, by a police constable of the village of Ilion, and on September 30,1884, the other defendants were personally served at their residences, at the village and town of Frankfort.

Held, that as the right to sue the note did nor accrue until September 19, 1878, the summons and complaint were served on Kinne within six years from the day when the cause of action accrued, and that a delivery of the summons and complaint to the constable and their service on Kinne on that day prevented the statute of limitations from applying as a bar in favor of the defendants who were not served until the twentieth.

Section 400 of the Code of Civil Procedure does not require that the summons shall be delivered to a constable of the town in which the defendant resides, but to a constable authorized to serve the summons in that town.

p. 246

Appeal from a judgment of the County Court of Herkimer county, affirming a judgment of a justice of the peace in favor of the plaintiffs.

Le Roy Budlong and Robert P. Budlong were joint and several makers, and Jeremiah Kinne the indorser of a promissory note, which fell due September 18, 1878, for the recovery of the amount due upon which this action was brought in a Justice’s Court.

September 17, 1884, the summons in this action was issued by a justice of the peace of the town of German Flats, to which was annexed a verified complaint. September 18, 1884, the summons and complaint were personally served on Kinne, at the town of German Flats, by a police constable of the village of Ilion, by whom also the summons and complaint were personally served September 20, 1884, on the other defendants, at their residences, at the village and town of Frankfort. Upon the return day the defendants filed a verified answer, setting up the six years’ statute of limitations and a counter-claim in favor of the makers of the note. Upon a day to which the cause was adjourned the defendants were allowed to amend their answer, by inserting: “ IV. The defendants, further answering said complaint, deny each and every, other allegation in said complaint contained, not hereinbefore admitted or answered.” The plaintiffs objected to the proposed amendment, upon the ground that it was insufficient and improper, which objection was overruled. The case was then adjourned, and afterwards tried, the defendants appearing and contesting, but offering no evidence. The justice rendered a judgment for the plaintiffs, which was affirmed by the County Court, and the defendants appeal from the judgment of that court.

Reuben Wright, for the respondents.

Smith & Steele, for the appellants.

Chapter 414, Laws of 1881, prescribing the form and substance of denials in cases in Justices’ Court in which verified complaints are filed, is identical with section 500 of the Code of Civil Procedure, prescribing the form and substance of denials in courts of record. 'Without determining whether the denial interposed was technically sufficient under the rules applicable to pleading in Justices’ Courts, we are of the opinion that the evidence was sufficient

p. 247

to establish tbe due appointment of tbe plaintiffs as tbe committee of tbe person and estate of Nelson Budlong. Tbe order appointing them, wbicb is in proper form, and tbe undertaking, wbieb is in proper form, given pursuant to tbe order, were produced by tbe county clerk from bis office, proved and received in evidence, wbicb was sufficient.

Tbe demand of payment of tbe note at tbe time when and at tbe place where payable, and tbe refusal to pay, was duly proved, together with notice to tbe indorser, by tbe person who made tbe demand. One of tbe plaintiffs also testified that tbe indorser admitted receiving a notice of protest. Tbe evidence sufficiently established a cause of action against all of tbe defendants, and tbe remaining question is, was the action barred by tbe six years’ statute of limitations \

Tbe right to sue this note did not accrue until September 19, 1878. (Osborn v. Moncure, 3 Wend., 170 ; Edw. on Bills [2d ed.], 679, 958.) An action begun within six years after that date was in time. (Code Civ. Pro., §§ 380, 382.) In computing the time in wbicb an action may be brought, tbe first day upon wbicb it might have been brought is excluded. (Cornell v. Moulton, 3 Denio, 12 ; McGraw v. Walker, 2 Hilt., 404; Code Civ. Pro., §§ 380, 788.) Tbe summons and complaint were personally served on Kinne within six years from tbe day when tbe cause of action accrued. Tbe other defendants resided, and were served September 20,1884, in tbe town of Frankfort, by a constable authorized by chapter 191, Laws of 1877, to serve summonses in that town. Tbe summons and complaint were delivered to this constable September 18, 1884, for service, and served that day on one of tbe defendants, wbicb prevented tbe statute from applying as a bar in favor of tbe defendants served September twentieth. (Code Civ. Pro., §§ 399, 400.) Section 400 of the Code does not require that tbe summons shall be delivered to a constable of tbe town in wbicb tbe defendants reside, but to a constable authorized to serve tbe summons in tbe town in wbieb tbe defendants reside.

Tbe judgment should be affirmed, with costs.

HaRdot, P. J., and BoardmaN, J., concurred.

Judgment of the County Court of Herkimer county affirmed, with costs.