279 A.D. 324 | N.Y. App. Div. | 1952
The indebtedness of the plaintiff to the defendant was evidenced by a promissory note, payable in three months. The last renewal note was dated October 19, 1932, and was payable on January 19, 1933.' The indebtedness, therefore, became due and payable on January 19, 1933. At that time, the defendant could have taken appropriate action to collect on the note or enforce his lien upon the rugs. Likewise, at
It is unnecessary to decide whether the statute has run against the note. The defendant’s lien was not impaired. The title to the rugs did not pass to the defendant, however, nor did the proceeds of the sales. The defendant received such proceeds as trustee for the purpose of applying the same upon the indebtedness owing by the plaintiff. The Statute of Limitations did not run against the lien so long as the trust relationship continued and was not terminated by payment of the indebtedness. (Hulbert v. Clark, 128 N. Y. 295.) Likewise, the plaintiff’s rights in the trust property were not barred by the statute. Under the facts in this case, the statute did not begin to run until the plaintiff made a demand for an accounting. (Miner v. Beekman, 50 N. Y. 337; Treadwell v. Clark, 190 N. Y. 51; Purdy v. Sistare, 2 Hun 126.)
We think that the plaintiff was not restricted, in the enforcement of its rights, to an action at law, (See Beugger v. Ashley,
Since we hold that the defendant may be entitled to credit for the reasonable and necessary expense in storing, caring for, insuring, and selling the rugs, we think that the interlocutory judgment unduly restricts the power of the referee to determine the same. The interlocutory judgment should be modified so as to empower and direct the referee to take all relevant and material evidence in that regard in order that the court, on final judgment, may do complete justice between the parties. The interlocutory judgment should be modified as indicated herein and as modified, affirmed.
All concur. Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.
Interlocutory judgment modified on the law and facts in accordance with the opinion and as modified affirmed, without costs of this appeal to either party. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. [See 280 App. Div. 910.]