81 N.Y.S. 139 | N.Y. App. Div. | 1903
The plaintiff seeks to recover a money judgment against certain of the defendants, who are the executors of John H. Van Clief, deceased, who was her general guardian. She has joined as party defendants the children of said deceased and certain other persons, who, she says, were also wards of the said deceased; but why these
The decision in Matter of Van Derzee by the General Term in this department (73 Hun, 532) is directly in point. The application was there instituted against these executors by one of the defendants to this action, who was a ward of the deceased, to compel an accounting, and it was held that the remedy was barred at the end of six years from the time the ward became of age. The court said (p. 534): “ The relation existing between the petitioner and his guardian from that time was that of debtor and creditor, and the six years’ Statute of Limitations would apply because such an action would be based upon an implied contract to pay over money belonging to the plaintiff.” (See, also, Busw. Stat. Lim. 474, and cases cited in note.)
The case of Matter of Sack (70 App. Div. 401) was that of an action brought against the guardian in his lifetime, and may be dis- " tinguished by that fact from the case at bar. Here the plaintiff certainly came of age in January, 1885, and could not only have maintained an action against her guardian during the remaining seven years of his lifetime, but could have compelled an accounting by the defendant executors immediately upon their appointment in March, 1892. (Matter of Wiley, 119 N. Y. 642.) The decision in this department must control the determination of this appeal
The learned counsel for the appellant claims that the question of limitations is to be governed by subdivision 5 of section 382 of the Code of Civil Pi’ocedure, which provides that the cause of action is not deemed to have accrued until the discovery of the facts constituting the fraud. The action in this case is not to procure a judgment on the ground of fraud, and no fraud is alleged in the complaint. The provision referred to has, therefore, no application.
The judgment should be affirmed.
Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.
Judgment affirmed, with costs.