188 Misc. 569 | New York County Courts | 1946
Certain questions of fact bearing on the claimed tolling of the statute have been resolved in plaintiff’s favor by /the Trial Court and must therefore be considered as established for the purpose of this appeal, if warranted by the evidence. A significant finding is that the payments made by way of credits or otherwise, amounting to' $563.68, and relied upon, to toll the running of the statute, were not for services rendered defendant’s corporation, as claimed by him, but were made to apply on the defendant’s personal note in suit.
In view of this finding the question is whether these payments were made under such circumstances as to accomplish their claimed effect. In deciding this it should not be necessary to draw fine spun distinctions pertaining to the relationship existing between the defendant and the corporation. Concededly, in a general sense, they were two distinct entities, but one was the creation of the other and under his management and control and each knew what the other was doing as related to the matter in hand. The law recognizes there can be situations where there is identity between the individual and the corporation which he dominates and controls and where the court can look behind the scenes. (Matter of Browning, 175 Misc. 107; Tompkins v. Miller Tompkins & Co., 207 App. Div. 819; Ultramar Co., Limited, v. Minerals Separation 126 Misc. 208.)
The judgment appealed from is affirmed, with costs.