Bruyn v. Comstock

56 Barb. 9 | N.Y. Sup. Ct. | 1865

By the Court,

Foster, J.

The judge found that the account was not presented by the plaintiffs to the defendant until the 11th of December, 1863. Upon this question there was a conflict of evidence, and, according to well settled rules, the court will not reverse the finding, even though, looking alone to what the testimony on paper discloses, we might have found the other way. It is enough, in order to uphold the finding, that there was testimony to support it, and that it was not manifestly against the weight of evidence. Taking it for granted, therefore, that the bill was presented on the 11th day of December, 1863, and more than- six years after all the judgments had been rendered and executions issued, and with one exception actually returned and filed, it is unnecessary to scrutinize the evidence of the plaintiff and cashier, to see whether the defendant is estopped from setting up the statute of limitations.

It seems to me that the mere statement of the facts disposes of the question. It cannot be doubted that before the 11th of December, 1857, the plaintiffs had a perfect right of action against the defendant for the whole amount of their claim, without any previous presentment, demand or notice; and necessarily the statute had then commenced to run; and before the 11th of December, 1863, the demand was barred.

It is argued that because an attorney may, within two years after he has recovered a judgment, acknowledge satisfaction thereon, the statute does not commence running until after that time has elapsed. And yet I presume no one would claim that upon a general retainer to collect, an attorney was bound to wait the two years before he could maintain an action for his services in obtaining the judgment. Indeed if, after obtaining the judgment and issuing execution thereon, the client should require and obtain the further services of his attorney for the purpose of collecting the judgment, and the attorney should, more than six years after the judgment was perfected, sue the client to recover his compensation, while he could recover for the subsequent service, he could not use those items of charge to take the claim for obtaining the judgment out of the statute. (Rothery v. Munnings, 1 Barn. & Ad. 15.)

On the trial.the plaintiff offered to prove that the defendant, within six years before the commencement of this action, collected, without the intervention of the plaintiffs, several of the judgments in question; which testimony was excluded by the court, and the plaintiffs excepted. The ruling of the court was correct. The judgments recovered for the defendant were owned by it exclusively; and whether they were ever collected or not would not affect the claim of the plaintiffs; which was, in any event, a legal demand against the defendant, until it was paid or barred by the statute. The statute commenced to run at least as soon as executions were issued, if not when the judgments were perfected.

[Onondaga General Term, January 3, 1865.

The judgment should be affirmed.

Morgan, Sacón and Foster, Justices.]