34 N.Y.S. 1083 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment overruling a demurrer to the plaintiff’s complaint, which contained the following allegations, in substance: Sophia Lynch died in 1876, leaving a husband and three children, of whom the plaintiff is one and the defendant is another. The plaintiff was five years old at the time of his mother’s death, who at that time was the owner of a market stand, stocks, and household furniture. The defendant converted this property to his own use more than six years before the commencement of. this action, and the plaintiff learned of such conversion one year before he brought his suit, and demanded his share of the property. His demand was refused. The plaintiff now claims possession of his share of the property, or for an accounting. The defendant demurred to the complaint on the ground—First, that it stated no cause of action; second, that there was a misjoinder of causes, plaintiff having sued both in trover and for an accounting. The action is based upon section 392 of the Code of Oivil Procedure, which reads as follows:
“For the purpose of computing the time, within which an action must be commenced in a court of the state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the said period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of 21 years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator.”
The cause of action set up by the plaintiff in this suit falls within the second subdivision of the foregoing section. The plaintiff is within its provision, for the reason that an action for the recovery of the property owned by the mother was barred by this section, and the plaintiff, at the time of the transaction upon which the action might have been founded, was within the age of 21 years.