170 Misc. 826 | N.Y. Sur. Ct. | 1939
The decedent died on Sunday, November 15, 1931. At the close of business on Saturday, November 14, 1931, there was a balance standing to his credit in the sum of $1,019.62 with the Bank of Manhattan. On Monday, November 16, 1931, there was deducted from said account the sum of $355.48, and subsequently on December 21, 1931, there was deducted from said account the sum of $250. The bank deducted the said amounts in payment of notes which became due and payable at the bank on each of which notes the decedent was an indorser.
Letters of administration were issued to the petitioner on September 30, 1932. The bank as to both deductions raised a defense of the Statute of Limitations and as to the first deduction claimed that at the time of the deduction the officials of the bank had no knowledge of the decedent’s death.
When did the Statute of Limitations begin to run? The cause of action accrued on September 30, 1932, the day the petitioner was appointed administratrix. Surrogate Wingate in Matter of Maguire (161 Misc. 219, 222; affd., 251 App. Div. 337; affd., 277 N. Y. 527), discussing section 57 of the Civil Practice Act, said, “ In practical effect, therefore, the result of the section is to give twelve years less one day from the death of the testator or intestate for the enforcement of such a claim in the event that letters are never in fact secured, or six y-ears from the issuance of letters, if these are actually obtained within six years from the date of decease.”
In this matter letters of administration were issued on September 30, 1932, and the petition is dated October 31, 1938. The court holds that the defense of the Statute of Limitations is well taken. The court further finds that on November 16,1931, the bank had no knowledge of the death of the decedent but on December 21,1931, it did have; however, this becomes immaterial since the Statute of Limitations is a complete defense.
Petition dismissed. Submit decree.