Mary Constantine, as Administratrix with the Will Annexed, etc., of Margaret Constantine, Deceased, Respondent, v. Richard B. Constantine, as Executor, etc., of Andrew J. Constantine, Deceased, Appellant

Mary Constantine, as Administratrix with the Will Annexed, etc., of Margaret Constantine, Deceased, Respondent, v. Richard B. Constantine, as Executor, etc., of Andrew J. Constantine, Deceased, Appellant. Action against an administrator of an executor — where a money judgment anci not an accounting is demanded, the six years' Statute of Limitations applies. The complaint in an action alleged that Margaret Constantine died in 1883, and. that Andrew J. Constantine was appointed her executor; that, as such executor, the said Andrew J. Constantine collected moneys aggregating more than §14,000, and that he died on January 4, 1901, without having accounted for the greater part thereof; that the plaintiff was the sole administratrix of Margaret Constantine, and that the defendant was the executor of Andrew J. Constantine. The plaintiff asked for a money judgment, and did not demand an accounting.. JSeld, that the action was based upon an implied contract to pay over money which belonged to the plaintiff, and that the six years’ Statute of Limitations, applied thereto. Appeal by the defendant, Richard B. Constantine, as executor,, etc., of Andrew J. Constantine, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1903, upon the decision of the court, rendered after a trial at. the Kings County Special Term, sustaining the plaintiff’s demurrer to the third separate defense contained in the defendant’s answer. Percy S. Dudley, for the appellant. Frederic E. Mygatt, for the respondent. [MAJORITY — Woodward, J. :] Woodward, J. : The complaint alleges the death of Margaret Constantine in 1883>-the probate of her last will and issuance of letters testamentary thereunder to Andrew J. Constantine, who continued to act as sole -executor until Ms death on January 4, 1901; that as such executor' he collected certain specified sums of money, aggregating more than $14,000; that he left a last will appointing defendant herein .his executor and that letters testamentary - were duly issued and that •defendant has ever since continued to act as ,sole executor under -said last-mentioned will. It also alleges the issuance of letters of •administration to the plaintiff in 1902, and that she is sole administratrix of ■ the estate of Margaret Constantine. Further it alleges that no part of the said specific sums of money was ever accounted for •or paid over "by defendant’s decedent to the persons entitled .under the will of said Margaret Constantine except three certain small .sums aggregating less than $300, and that the remainder of said .sums collected and received by.defendant’s decedent is now due -and owing by the defendant to the plaintiff. Among other defenses, the defendant pleaded the six years’ Statute of Limitations, and to this the plaintiff demurred, thus admitting that the alleged cause of action did not accrue within six years ■ before the commencement of the action. In determining whether the six years’ statute is a bar, we have -only to look to the complaint tó ascertain the nature of the cause of ¡action. The plaintiff does not ask for an accounting, and Matter of Camp (126 N. Y. 377) and Matter of Jones (51 App. Div. 420) are, therefore, not in point. Having alleged that certain sums of money belonging to the plaintiff as administratrix have been received by the defendant’s decedent and not accounted for, the plaintiff •demands a money judgment against the defendant. The action is based upon an implied contract to pay over money belonging to the plaintiff, and the six years’ Statute of Limitations, therefore, applies. (See decision of this court in Libby v. Van Derzee, 80 App. Div. 494 ; affd. without opinion, 176 N. Y. 591.) The interlocutory judgment sustaining the demurrer should be .reversed. All concurred. Interlocutory judgment reversed and demurrer overruled, with •costs.