10 Misc. 125 | New York Court of Common Pleas | 1894
The complaint declared upon two causes of • action for money loaned; the defenses interposed being a general denial, that the several causes of action did not accrue within the six years immediately preceding the commencement of the action, and that the moneys alleged to have been loaned were in fact paid upon the purchase of a demand existing in favor of the defendant against a third person. Regarding the action as having proceeded upon the causes of action alleged, it was clearly error for the trial court to deny the defendant’s motion, made when the evidence was finally submitted, for the direction of a verdict in his favor. It was then unchallenged that the summons was not served upon the defendant until some time after the expiration of six years immediately succeeding the accrument of the several causes of action; and there was no evidence whatever from which it could be made to appear, even inferentially, that the defendant was not at all times a resident of the state, or that the -bar of the statute of limitations was removed by a new promise of part payment. The defense of the statute had therefore prevailed, and a judgment for the defendant was inevitable. Proof that the summons was lodged with the sheriff within the six years, for service upon the defendant, without further proof that the defendant was at the time a resident of the same county, did not operate to prevent the effect of the statute. Code Civ. Proc. § 399. Furthermore, it was conclusive from the unchallenged testimony of an unimpeached and disinterested witness that the defendant then was a resident of a county other than the one with the sheriff of which the summons was lodged for service.
Deeming the evidence adduced on the trial sufficient to show either that the moneys sought to be recovered in this action were paid by the plaintiff to the defendant under a mutual mistake, or that the moneys were obtained by the defendant from the plaintiff by fraud, and intending to invoke the aid of a ruling that, under such circumstances, the statute of limitations was not set in motion until a demand for the return of the moneys upon discovery of the mistake or fraud, the general term below directed an amendment of the complaint to conform to the proof, and so affirmed the judgment. That such' an amendment was unauthorized is obvious. No amendment of the complaint was asked for on the trial, and, indeed, the trial court could not have granted it, since its effect would have been to substitute new and entirely different causes of action for
The judgments of the general and trial terms below should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.