168 Misc. 126 | N.Y. App. Term. | 1938
The defendant, in view of the character of its promise, had a reasonable time within which to perform which from the undisputed facts was from two to four years from the date of the contract. The default of the defendant in failing to perform up to the date of the institution of the action conferred upon the plaintiff the right to rescind the contract (5 Williston on Contracts [2d ed.], § 1457, p. 4069; Clarke Contracting Co. v. City of New York, 229 N. Y. 413, 420; Bank of United States v. National City Bank, 123 Misc. 801; affd., 214 App. Div. 716.)
The Statute of Limitations did not run until the defendant had a reasonable time within which to perform subsequent to the contract date. A reasonable time to perform at the earliest was in July, 1932, or two years after the contract was made. Hence the action brought in October, 1937, was commenced within the six-year period of the Statute of Limitations and the defense of the statute is unavailing. (Bykowsky v. Public National Bank, 209 App. Div. 61; affd., 240 N. Y. 555; Schochet v. Public National Bank, 220 App. Div. 201.) Order reversed, with ten dollars costs, and motion for summary judgment granted.
All concur. Present — Hammer, Shientag and Noonan, JJ.