Constantine v. Constantine

87 N.Y.S. 139 | N.Y. App. Div. | 1904

Woodward, J. :

The complaint alleges the death of Margaret Constantine in 1883>-the probate of her last will and issuance of letters testamentary thereunder to Andrew J. Constantine, who continued to act as sole -executor until Ms death on January 4, 1901; that as such executor' he collected certain specified sums of money, aggregating more than $14,000; that he left a last will appointing defendant herein .his executor and that letters testamentary - were duly issued and that •defendant has ever since continued to act as ,sole executor under -said last-mentioned will. It also alleges the issuance of letters of •administration to the plaintiff in 1902, and that she is sole administratrix of ■ the estate of Margaret Constantine. Further it alleges that no part of the said specific sums of money was ever accounted for •or paid over "by defendant’s decedent to the persons entitled .under the will of said Margaret Constantine except three certain small .sums aggregating less than $300, and that the remainder of said .sums collected and received by.defendant’s decedent is now due -and owing by the defendant to the plaintiff.

Among other defenses, the defendant pleaded the six years’ Statute of Limitations, and to this the plaintiff demurred, thus admitting that the alleged cause of action did not accrue within six years ■ before the commencement of the action.

In determining whether the six years’ statute is a bar, we have -only to look to the complaint tó ascertain the nature of the cause of ¡action. The plaintiff does not ask for an accounting, and Matter of Camp (126 N. Y. 377) and Matter of Jones (51 App. Div. 420) are, therefore, not in point. Having alleged that certain sums of money belonging to the plaintiff as administratrix have been received by the defendant’s decedent and not accounted for, the plaintiff •demands a money judgment against the defendant. The action is based upon an implied contract to pay over money belonging to the plaintiff, and the six years’ Statute of Limitations, therefore, applies. (See decision of this court in Libby v. Van Derzee, 80 App. Div. 494 ; affd. without opinion, 176 N. Y. 591.)

The interlocutory judgment sustaining the demurrer should be .reversed.

All concurred.

Interlocutory judgment reversed and demurrer overruled, with •costs.