242 A.D. 702 | N.Y. App. Div. | 1934
Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. Plaintiff, respondent, sued to recover for services rendered and disbursements incurred as an engineer in connection with the planning of polo fields at the Roekaway Hunting Club. Defendant Cowdin, a member of the club and chairman of the polo committee, was sued upon the theory of implied warranty of authority to act for the club. Actual intention that plaintiff was to perform services upon defendant Cowdin’s implied warranty of authority is not sustained by the facts and circumstances. Upon this ground alone we think the complaint may be dismissed. Defendant Cowdin is not responsible for “ continuing assertions ” (Moore v. Maddock, 251 N. Y. 420) alleged to have been made subsequent to 1922, since plaintiff makes no claim for services rendered and disbursements incurred after that time. The Statute of Limitations began to run against plaintiff’s claim in 1923, at which time plaintiff might have demanded payment. The action is barred by the six-year limitation since it was not begun until 1931. Kapper, Carswell, Scudder and Tompkins, JJ., concur; Lazansky, P. J., votes for reversal and a new trial on the ground that there was a question of fact which should have been submitted by the court to the jury. The Statute of Limitations is not a bar.
