141 N.Y. 409 | NY | 1894
The plaintiff was defeated in this action upon the ground that the cause of action was barred by the Statute of Limitations. That ruling presents the only question involved in this appeal. The learned referee deduced that conclusion from the following facts which he found: The plaintiff is the widow and the defendants are the executors of Ashbel W. Riley, who died on the 3d of April, 1888. The deceased, several years before his death, owned some real estate, for the sale of which negotiations were pending and substantially completed, but the plaintiff, who had a dower right in the same, refused to execute the deed unless a portion of the purchase price was paid or secured to her. It was finally agreed between all the parties in interest that $2,500 of the price should be paid to her, and upon this agreement she signed the deed, which was delivered to the purchaser on the 31st of March, 1882, and on the same day the whole of the purchase price was paid to the deceased, including the sum belonging to the plaintiff, which was paid to him for her. It does not appear that any part of the money so received was *411 ever paid to the plaintiff by her husband, and this action was brought to recover the same, with interest. On the 30th of March, 1888, four days before the husband's death, a summons and complaint, in an action by the plaintiff against her husband for the recovery of the money and interest, was delivered to the sheriff of the county where the parties resided, with intent that the same should be actually served on the defendant named therein. The sheriff attempted in good faith to make the service, but the physicians in charge of the deceased, in what proved to be his last sickness, did not allow access to him, and so no service was made, as the husband grew rapidly worse and died as before stated. The claim was subsequently presented to the executors, who rejected it, and upon their refusal to refer the same, the present action was commenced against them by the delivery of the summons and complaint to the sheriff for service on October 2d 1889, the defendants appearing January 31st, 1890.
It is provided by section 403 of the Code that the term of eighteen months after the death, within the state, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator. The action was commenced within that time after the death of the testator and, unless the claim was already barred at or before his death, was commenced in time. We must assume upon the facts found that the cause of action accrued when the husband received the money. There is no finding that he held it by virtue of any trust or under such circumstances as would require a demand before suit under the provisions of section 410. So far as appears it was the ordinary case of money received by one party for the use of another, under a duty to pay it over at once, and no demand was necessary before the right of action accrued. The plaintiff, therefore, could have brought the action as early as March 31, 1882, and the six years' term of limitation, consequently, expired on March 31, 1888. (Wood v.Young,
There are no findings and there is no proof that would warrant the conclusion that the claim was paid before the death of the husband though that defense is pleaded. Nor can it be held, as the case now stands, that there was an agreement to compensate her by will, which was carried out and accepted. It was competent for the parties to adjust the claim in that way. (McLaughlin v.Webster,
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed. *414