62 N.Y. 560 | NY | 1875
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *562
The Supreme Court at General Term reversed the decision of the judge at Special Term, but affirmed his judgment upon a ground not considered or made upon the trial, and which was not presented by the record. It was held by the court, at the trial, that the contract, under which the plaintiff's assignee rendered the services mentioned in the complaint, was void by the statute of frauds, and that therefore a right of action existed against the decedent at once, upon their performance, upon a quantummeruit. It followed that those services having been rendered in 1845, and the debtor dying in 1864, this action, not having been brought until 1872, was barred. Upon this view of the contract the judge was entirely right; and the cause of action was barred at the death of Jonathan Kent, the original debtor, and there never was a cause of action against the personal representatives or the heirs at law of the deceased debtor. *564
This clearly resulted from the ruling that the contract for compensation by a testamentary provision was void, as not to be performed within a year from the making thereof. (Shute v.Dorr, 5 Wend., 204.) But the judge erred in holding the contract within the statute making void "every agreement that by its terms is not to be performed within one year from the making thereof." (2 R.S., 135, § 2.) The performance of the contract as alleged in the complaint, and offered to be proved upon the trial, was not necessarily or by the terms of the agreement postponed for more than one year from the time it was made. It was uncertain as to its duration. No time was agreed upon for service by the assignor of the plaintiffs; and the time for the performance of the agreement by the deceased was not, by the terms of the contract, to be more than one year from the making of the contract. The time of payment depended upon the continuance of the life of the deceased; and the debt might become due at any time. (Trustees of First Baptist Church v.Brooklyn F. Ins. Co.,
Under the circumstances of this case, the limitations prescribed by statute to the time for commencing actions against executors and administrators were not applicable. This action is based upon a claim against the estate of the deceased debtor, to reach property alleged to have been conveyed by the debtor in his lifetime in fraud of the rights of creditors. It would have been competent for the defendants to have proved that the right of action, as against the personal representatives of the deceased debtor, was barred by lapse of time, or to allege any defence which would have availed the personal representatives in an action against them upon the same claim. They might, also, avail themselves of any defence peculiar to them — as that the statute had barred the right to any relief against them or the property conveyed, *566 notwithstanding the cause of action was perfect against the administrators.
The error of the court at General Term consisted in holding that the claim was barred by lapse of time at the commencement of this action, within the statute regulating the time for commencing actions against personal representatives of deceased debtors. The claim was not barred as against the estate or the personal representatives of the deceased debtor. He died in 1864; the action was commenced against his personal representatives in 1867, resulting in a judgment for the claimant in 1870, two years before the commencement of the present action. That judgment was not evidence against the present defendants of the claim or demand (Sharpe v. Freeman,
What that limit as applied to this case is, was not suggested or passed upon by the Supreme Court, either at Special or General Term, and is not, therefore, before us upon this appeal. Upon the view taken by the court at Special Term, of the invalidity of the special contract under which the plaintiffs claim, the question could not be in the case. Evidence bearing upon that question, or of circumstances showing when the cause of action accrued and the statute of limitations commenced running, upon the assumption that there was an original liability, would have been incompetent after the decision made at the opening of the trial, that the agreement was invalid. *567
The cause should go back for a retrial, to the end that upon such evidence as the parties may give, and all the circumstances of the case, the legal questions involved may be properly presented.
Judgment reversed and a new trial granted, costs to abide event.
All concur; MILLER, J., not sitting.
Judgment reversed.