12 N.Y.S. 480 | N.Y. Sup. Ct. | 1890
This action was brought to recover the sum of $30,000, with, interest, upon a written obligation, in which Marshall O. Roberts, the defendants’ testator, admitted himself indebted to the plaintiff' in the sum mentioned, and which was to be due, and payable, when the steam-ship Illinois, of 2,500 tons burden, should be disposed of by sale, gift, or loss, and which, he held to sell and dispose of, and from the proceeds pay the plaintiff the amount named. But in that instrument it was agreed between Messrs. Roberts and Hall that neither the whole nor any part of the sum mentioned should be due and payable until the sale and transfer of the steam-ship was-perfected, in which event Roberts promised and agreed to notify Hall of her disposal, and, within 10 days thereafter, pay the full amount in lawful currency of the United States, as stipulated. It was conceded on the trial that this action was not commenced until the 2d of August, 1888. After the-learned counsel for the plaintiff had presented, in his opening, the facts and circumstances attending and surrounding the claim, the defendants moved to dismiss the complaint. The motion, after the admission stated, was predicated of the counsel’s opening, from which it appeared that Mr. Roberts had died in the year 1880; that the plaintiff had made inquiries of him as to-the sale of the vessel; and that Mr. Roberts had denied that the vessel was-sold, but that after the death of Mr. Roberts he had employed persons to ascertain whether the Illinois was sold, but was unable to obtain information until 1887, when he learned from Mr. Patterson, an executor of Mr. Roberts, that it had been sold in 1864, about eight months after the contract was-made; and further, that the bill of sale was not registered nor recorded in the custom-house until 1865. It thus appears that up to the year 1880 inquiries were made by the plaintiff of Mr. Roberts as to the sale of the vessel, but that no information of that circumstance was given him; and that he-did not learn of the sale of the vessel until 1887, less than two years prior to-the commencement of this action, and notwithstanding that he had employed persons to discover whether the sale had or had not taken place.
When the motion to dismiss the complaint was made, and after the admission which has been referred to, the learned justice presiding asked the counsel for the plaintiff if he had any acknowledgment in writing, or any evidence-further than that he had stated, to take the.cause of action out of the opera