Northrop v. Hill

61 Barb. 136 | N.Y. Sup. Ct. | 1871

By the Court, Johnson, J.

According to the plaintiff’s otter of proof upon the trial, he once had a good cause of action against the defendant. (Haight v. Hayt, 19 N. Y. 464, and cases there cited.) But it is entirely clear that he has lost it by his delay in commencing his action. The fraud complained of was practiced. upon the plaintiff in March, 1854, and this action was not commenced until June, 1869, nearly fifteen years afterwards. It is admitted that the fraud was discovered - by the plaintiff more than six years before he commenced his action. There can be no doubt that this cause of action accrued to the plaintiff the moment the bargain was completed by the conveyance of the premises to him. It is of no consequence, whatever, that he did not discover the fraud within the six years. Had the defendant even concealed it from him, it would not have prevented the statute - from running. (Leonard v. Pitney, 5 Wend. 30. Allen v. Mille, 17 id. 202. Granger v. George, 5 Barn. & Cress. 149.) It is unnecessary to multiply authorities, the point has been so often decided, and the rule so well settled.

The plaintiff’s counsel seems to suppose that had the action been brought the moment the-cause of action accrued, nothing but nominal damages could have been recovered. This clearly is not so. The injury had then been inflicted, and the resulting damages could have been recovered, whether great or small.

One'measure of damages would have been the difference in value between the premises unincumbered, as represented, and incumbered, as they proved to be in fact. This was, prima facie, the amount of the mortgage. Another, leading to the same result, might have been that suggested in Van Epps v. Harrison, (5 Hill, 63,) the expense of putting the premises in the condition in which they were represented to be when conveyed. But whether this is so or not, it does not affect the question of the running of the statute.

The cause of action was the single act of fraudulent misrepresentation, and the right of action accrued when that representation was made.

It was not a continuous act, like a continuing trespass, or a nuisance. It was the act of misrepresentation which constituted the cause of action, and not the resulting damages. (Whitehouse v. Fellowes, 100 E. C. L., 765.)

[Fourth Department, General Term, at Syracuse, November 13,1871.

The nonsuit was right, and the judgment must be affirmed.

Talcott, J., having been engaged as counsel in the case, did not sit.

Muttin, P. J., and Johnson, Justice.]