141 N.Y.S. 409 | N.Y. App. Div. | 1913
In the form in which this case reaches us on the present appeal there is involved only the questions as to the availability of the Statute of Limitations as a defense to the plaintiff’s claim. .
The action is. brought in equity to compel defendant to deliver to plaintiff fifty shares of its capital stock, or, if that be impossible,' to; pay to plaintiff the value of fifty shares thereof, and to account for the dividends earned upon fifty shares of said stock since the 4th day of March, 1868.
The plaintiff is the administratrix of Harriet G. Glover, who, as it is alleged, was the owner, of fifty shares of the capital stock of the defendant from August 31, 1865, down to and until March ¡4, 1868, upon which date, as the complaint charges: “ The defendant, by or through the negligence or carer
Then follow appropriate allegations respecting the value of the stock; the declaration of dividends; the refusal of defendant to pay said dividends to plaintiff or her intestate, or to acknowledge the right of said plaintiff or her intestate to receive the stock. It is reiterated that the power of attorney under which the transfer was made was forged and did not bear the valid signature of plaintiff’s intestate, and that the defendant’s act in transferring the stock was an act of gross carelessness on the part of defendant, and its acts in that regard are characterized as extremely unjust and inequitable. No demand upon defendant to return the fifty shares of stock and to pay the dividends thereon is alleged except on July 1, 1910.
The answer puts in issue the material allegations of the complaint and alleges three separate defenses: First, that the alleged cause of action stated in the complaint did not accrue within ten years before the beginning of this action; second, the alleged cause of action stated in the complaint did not accrue within twenty years before the beginning of this action; third, the alleged cause of action stated in the complaint did not accrue within six years before the beginning of this action. The amended reply denies that the ten, twenty or six-year periods have elapsed between the date when the cause of action set forth in the complaint accrued and the commencement of this action. It also alleges' three separate avoidances, which are as follows: First. That plaintiff’s intestate, during her life, and plaintiff, individually or as administratrix as aforesaid, prior to six years before the commence
It is quite clear, and the defendant so concedes, that the complaint states a good cause of action. (Pollock v. National Bank, 7 N. Y. 274; Telegraph Company v. Davenport, 97 U. S. 369.) Hence, if the allegations of the complaint are sustained by the proofs as, on this appeal we must assume that they will be, the plaintiff will be entitled to a judgment unless the Statute of Limitations proves to be an effective bar to a recovery. That statute is essentially a statute of peace not affecting the plaintiff’s abstract right, but applying only to the remedy. It is
The plaintiff relies upon two sections of the Code of Civil Procedure to avoid the plea of the statute.
The first section thus relied upon is section 410, which reads as follows:
“ § 410. Provision when the action cannot be maintained without a demand. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete, except in one of the following cases:
“1. Where the right grows out of the receipt or detention of of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends.
“ 2. Where there was a deposit of money, not to be repaid at a*252 fixed time, but only upon a special demand, ór a delivery of persorial property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand.”
This section refers only to cases in which a demand is necessary to entitle a person to maintain an action, and the first inquiry suggested is whether or not this; is such an action. We are satisfied that it is not. The injury to plaintiff’s intestate ' was accomplished, . and her right of action complete at the moment that her shares were wrongfully, transferred upon the faith of the forged power of attorney. No demand was necessary to perfect the cause of action, because, the sole object of a demand is to convert an otherwise lawful possession into an unlawful one. (MacDonnell v. Buffalo L., T. & S. D. Co., 193 N. Y. 92, 101.) The distinction between a cause of action which requires a demand to sustain it and one which does not is well illustrated in Ganley v. Troy City National Bank (98 N. Y. 487). In that 'case the plaintiff sued for the breach of an express contract, by the terms of which certain United States treasury notes were to be held by the defendant for the depositor until the surrender of the receipt evidencing such deposit. More than six years prior to the commencement of the action the bank had wrongfully surrendered and delivered the notes to the husband of the depositor without her consent, and without the production and surrender of the receipt. The ■ action was, in form, one for damages for breach of the express ' contract in refusing to deliver the bonds upon the production and surrender of the receipt. The defense was the Statute of Limitations. The court pointed out that the act of the defendant in wrongfully delivering the notes to the depositor’s husl)and constituted a conversion, and that the plaintiff might have sued in trover, and that, if she had so sued, the action would have been barred by the six years’ statute, even if the facts were unknown to the depositor, for the cause of action would have been complete when, the' conversion was effected, and no demand was. necessary to lay the foundation for an action for conversion against the depository, and that, in the absence of the necessity for !a demand, the statute began to run from the moment of the commission of the wrong. But it was held that
But even if it should be considered that the present is a case in which a demahd is necessary to constitute a cause of action, still the section of the Code above quoted does not help the plaintiff. By that section where a demand is necessary to entitle a person to maintain an action- the time within which the action must be. begun is to be computed from the time when the right to make the demand is • complete (in this case the moment the wrongful transfer was made) except in one of two cases defined in subdivisions 1 and 2. The 2d subdivision is obviously inapplicable to a case like the present, and the plaintiff must rely upon the 1st, which applies to a case in which the right of action “grows out of the receipt or detention of money or property by an agent, trustee, attorney or other person acting in a fiduciary capacity.” The plaintiff’s contention is that this subdivision is applicable, because, as it is insisted, a bank stands in a fiduciary relation towards its stockholders in so far as it undertakes to transfer shares of stock upon its books, and
It is said in Anderson’s Dictionary of Law (p. 459) that the words “fiduciary” and “confidential” are commonly used by courts and law writers as convertible expressions, and Bouvier
The plaintiff' also relies upon subdivision 5 of section 382 of the Code of Civil Procedure which is the section specifying the cases to which the six-year Statute- of Limitations applies. That section provides that an action must be commenced within six years if it be brought “ to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of December, 1846, was cognizable by the Court of Chancery.” The exception, upon which plaintiff relies, reads as follows: “The cause of action, in such a case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.” The plaintiff’s argument is that this exception is applicable to her cause of action' because she did not discover the facts upon which that cause of action arose, until within less- than six years before bringing her action. But this argument must be unavailing unless it can be said that the right of action arose from a “fraud” committed by
The reply gains nothing by the inclusion of allegations that after the wrong had been done to plaintiff’s intestate the defendant concealed the facts from her and from plaintiff. Mere concealment is not made a bar by the statute. In certain cases, of which this is not one, ignorance of the facts postpones the running of the statute; but except in such cases, ignorance, whether induced by concealment or otherwise, has no such effect. And even where fraudulent concealment will postpone the operation of the statute it must be something more than mere silence, and must consist of some affirmative act of misrepresentation or the like. (Wood Lim. Actions, § 276; 25 Oyc. 1218; 19 Am. & Eng. Ency. of Law [2d ed.], 252, 253.) The mere general allegation of concealment such as is contained in the present reply does not import or charge the commission of any such affirmative act, but would be fully satisfied by proof that defendant had kept silence, perhaps through ignorance of plaintiff’s rights. To make out a case of fraudulent concealment the specific acts relied upon to establish it should be alleged. Mere general allegations of concealment like general allegations of fraud are of no value in stating a cause of action (Knowles v. City of New York, 176 N. Y. 430) and of no greater value in a reply. Our conclusion, therefore, is that the reply contains no effective avoidance of defendant’s plea of the Statute of Limitations, and that the demurrer thereto must be sustained.
The order appealed from should be reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs.