40 Barb. 320 | N.Y. Sup. Ct. | 1863
The only objection to the recovery, taken upon this appeal, is founded upon the statute of limitations; and it is claimed that more than six years had elapsed after the accruing of the cause of action, before the commencement of these proceedings, November, 1862. The liability of the defendants, upon their note, was not absolute but was conditional, depending upon the necessities of the company, and the demand of its officers. They could only be called upon to pay on an assessment made to meet the exigencies of the company, and an assessment could only be made when required to pay losses or the current expenses; and before an action could be brought, that is, before a cause of action could accrue upon the note, notice of the assessment was required to be given and demand of payment made. (2 R. S. 5th ed. 757, § 44.) The note was only payable upon actual demand after the happening of the contingency upon which it was authorized to be made, and upon performance of the conditions precedent by the holders of the note. By law the power and the duty of making the assessments was transferred, upon the insolvency and dissolution of the company, from the directors to the receiver; and neither could bring an action without first making the assessment and demand. (Savage v. Medbury, 19 N. Y. Rep. 32. Laws of 1852, ch. 71.) The cause of action does not accrue until suit may be brought without further act on the part of the plaintiff. The cause of action was only perfect August 12, 1862, and from that time the statute only commenced to run. Had the plaintiff brought suit on the note on the 11th of August, or even after the 12th of August, and before personal demand of the defendants, he would have failed. This answers the only objection taken to the judgment, upon the appeal, and judgment of affirmance with costs must be given.
Alien, Mullin, Morgan and Bacon, Justices.]