Hyperlawhypertext legal database Compton v. Elliott 48 N.Y. Super. Ct. 211

← Cases

Compton v. Elliott

48 N.Y. Super. Ct. 211 16 Jones & S. 211 Court N.Y. Super. Ct. Decision date 1882-04-03 English

Contents

Majority

p. 211
MANSFIELD COMPTON, Appellant, v. HENRY ELLIOTT, et al., Impleaded, Respondent.[1]

Headnote

Statute of limitations.-—Balease.
The complaint alleged that plaintiff, having obtained a judgment for . defendant’s testator against one S., was employed by said testator to resist proceedings by S. to be relieved from the same, upon an agreement that he “ should have one-half of said judgment, and should have and receive one-half of the money that should be collected and received thereonthat thereafter defendant and his co-executors without plaintiff’s knowledge collected said judgment and satisfied it of record; an accounting was prayed for. Held (on demurrer to the defense that the cause of action did not accrue within ten years prior to the commencement of the action), that the six years’ limitation should apply, the action being on express contract notwithstanding an accounting was asked; that no demand was necessary to set the statute running; and therefore ten years had elapsed since the cause of action accurred.
Upon demurrer to the defense that plaintiff had by release under seal released S. from the judgment, in consideration of the payment to him by S. of §100, and that said sum was received in satisfaction of the subject-matter of the action,—Held, that a party may release a cause of action against one person upon a consideration flowing from another.
p. 212
Before Sedgwick, Ch. J., Freedman and Russell, JJ.
Decided April 3, 1882.
Appeal by the plaintiff from an order overruling demurrers to defenses alleged in the answer, and from the judgment entered upon such order.
The complaint alleged that on September 8, 1867, Joseph. T. Whitehouse and William H. Hollingshead, as partners, recovered a judgment for $1,074.62 against one Abraham Solomon, and that, in 1867 and 1868, Solomon, being engaged in endeavors to relieve himself from the judgment, by bankruptcy proceedings, and from the orders of arrest granted in the action, the judgment creditors agreed, in consideration of the plaintiff’s preventing Solomon’s discharge, that he “should have one-half of the said judgment, and should have and receive one-half of the money that should thereafter be collected and received thereon. ” It then alleged the performance of the conditions on his part, the death of Whitehouse and Hollingshead,—the former in 1869 and the latter in 1871,-—the appointment of the defendant as one of the executors of Hollingshead ; and ’that, on June 28,1871, the defendant and his co-executors, without the knowledge of the plaintiff, collected from Solomon the amount of the judgment, and satisfied it of record ; and it asks judgment against them in their representative capacity and as individuals, that they account to him for one-half the amount of the judgment.
Among other defenses, this defendant alleged that the cause of action stated in the complaint did not accrue within ten years before the commencement of the action. The other defense demurred to, was that the plaintiff, before the commencement of the action, for the consideration of $100 paid him by Solomon, released and discharged Solomon from the judgment, and especially one-half thereof ; that the release was under seal, dated January 5, 1881, and that “the said one
p. 213
hundred dollars was received by the plaintiff in full satisfaction of all his real and pretended rights and claims in the subject-matter of the action.”
Mansfield Compton, appellant in person.
A. C. Farnham, for the defendant.

On the argument- the defense of the statute of limitations was discussed as if it were a demurrer, alleging that on the face of the complaint it appeared that the plaintiff’s cause of action did not accrue within ten years before the beginning of the action, and much was said on the subject whether or not the statute began to run from the time when the moneys were collected by the defendant, or only from the time of a demand made by the plaintiff. It is not a demurrer, and cannot be treated as such. We are concerned to know, not whether the answer can be proved, but whether, if proved, it consti- • tutes a good defense. The answer employs the usual form in pleading the statute of limitations. The allegation is that the plaintiff’s cause of action did not accrue within ten years, and the demurrer admits, for present purposes, that the allegation is true. We can look to the complaint only to ascertain the nature of the cause of action, not when it accrued. It becomes necessary, therefore, to consider only whether the cause of action sued on was one barred by the statute in ten years. We think it was barred in six years, by subd. 1 of § 382 of the Code, being really a cause of action on express contract. Under certain circumstances the plaintiff might perhaps have brought a suit in equity to charge a specific fund, but it is now too late, and his allegations and demand for an accounting are not enough to make this an -action in equity. But it is not necessary so to decide for the purposes of this appeal, and, as § 388 of the Code provides that the time of limitation for all actions not specifically provided for

p. 214
in other sections shall be ten years, ten years is certainly the extreme limit of the statute upon the cause of action set up in the complaint. It follows that the demurrer to this defense was properly overruled.

As it is likely that on the trial of the action the question may again arise whether it was necessary that there should be a demand in order to set the statute running, we will say we are clearly of opinion that it was not (Herrick v. Wolverton, 41 N. Y. 581 , 596 ; Hirst v. Brooks, 50 Barb. 334 ; Wheeler v. Warner, 47 N. Y. 519 ).

It is only in cases of deposit (Payne v. Gardner, 29 N. Y. 146 ; Thomson v. Bank of Brit. N. A., 82 Id. 1), or where the holder of the money has an express (Boughton v. Flint, 74 N. Y. 476 ) or implied right to retain it until a demand, that a demand is necessary to set the statute running.

We have already expressed the opinion that the plaintiff’s cause of action arises out of contract. His right to maintain an action was perfect as soon as the moneys were collected by the defendant. It became ffieir duty, assuming his allegations to be true, to pay over the moneys to him at once, and no demand on his part was necessary before bringing suit (Stacy Graham, 4 Kern. 492). The beginning of a suit would itself have been a sufficient demand. The statute of limitations then began to run from the time the moneys were received by the defendants. It is like any other case where A. agrees to pay B. a certain sum of money upon the happening of a certain event. B.’s right of action accrues upon the happening of the event, and the statute of limitation begins to run from that time (Bruce v. Tilson, 25 N. Y. 194 ; Adams v. Fort Plain Bank, 36 Id. 255 ; Mygatt v. Wilcox, 45 Id. 306 ; Quackenbush v. Ehle, 5 Barb. 469 ; Foot v. Farrington, 41 N. Y. 164 ). No demand is necessary before beginning an action against one who receives money to another’s use (Howard v. France, 43 N. Y. 593 ).

p. 215
As to the other defense demurred to, we are not called upon to determine what the construction of the release actually given should be; the paper itself is not before us; we must take it as stated in the answer, and the allegation that $100 was received in full satisfaction of the plaintiff’s claim and all his real and pretended rights and claims in the subject-matter of this action, was enough to constitute a good defense. A party may release a cause of action against one person upon a consideration flowing from another (Tuckerman v. Sleeper, 9 Cush. 177 ; Cook v. Lister, 13 Com. Bench N. S. 543; Harrison v. Hicks, 1 Port. [Ala.] 423).

The result is, the order and judgment appealed from must be affirmed with costs, with leave to withdraw the demurrers on payment of costs.

Sedgwick, Ch. J., and Freedman, J., concurred.

Cases cited