Margaret Donlon, as Executrix, etc., of Bridget Fox, Deceased, Appellant, v. John Davidson, Respondent

Margaret Donlon, as Executrix, etc., of Bridget Fox, Deceased, Appellant, v. John Davidson, Respondent. Check — it must be presented for payment within a reasonable time—a delay of fourteen years is too great— Statute of Limitations. In an action, begun on the 14th day of June, 1895, it appeared that, on the 12th day of December, 1880, the defendant made and delivered a check for fifty dollars to Bridget Fox, who subsequently died; that in January, 1895, the plaintiff, as her executrix, presented the check for payment to the bank upon which it was drawn, and that payment was refused upon the ground that the drawer had no money in the bank. Held, that the six-year Statute of Limitations applied, and constituted a defense to the action; That the court properly held, as matter of law, that the check was not presented for payment to the bank within a reasonable time. Appeal by the plaintiff, Margaret Donlon, as executrix, etc., of Bridget Fox, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 21st day of March, 1896, upon a non-suit granted by the court at the Chautauqua Trial Term, after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1896, denying the plaintiffs motion for a new trial made upon the minutes. This action was commenced on the 14th day of June, 1895. 'The plaintiff’s complaint alleges that on the 12th day of December, 1880, at the city of Jamestown, for value received, the defendant made and delivered to Bridget Fox an instrument in writing, in the following words and figures : "<c No. —. Jamestown, N. Y., Deo. 12, 1880. “ Chautauqua County National Bank, pay to the order of Mrs. Fox, or bearer, Fifty $ Dollars on interest at six percent., Dollars, for value received. “$50. (Signed) JOHN DAVIDSON.” - . That in January, 1895, the plaintiff, as executrix of said Fox, presented the instrument to the cashier of said bank and demanded payment thereon, and the said bank refused to pay the same “ because the said Davidson had no money .in said bank to pay the same, and said plaintiff thereupon immediately notified said Davidson personally that payment of said instrument had been refused because said Davidson had no funds in said bank to pay the .same.” The complaint also alleges that before the presentation of said check ■or instrument to said bank for payment, the will of Bridget Fox had been duly probated in the county “ wherein said Bridget Fox ■died,” and letters testamentary were duly issued to- the plaintiff, and that said check or instrument is one of the assets of- said ■estate.” The .plaintiff demands judgment for - fifty dollars, with interest from December 12, 1880. The answer admits the making and delivery of the check or instrument on the 12th day of December, 1880, and alleges “ that the said check and the consideration for which it was given was thereafter fully paid and satisfied.” The answer further alleges that the check “ was never presented to the Chautauqua County National Bank, the .place where made payable and payment demanded by said Bridget Fox during her lifetime, nor within fourteen years and upwards after the same was made and given, nor w*as any notice of such presentment and non-payment ever given the defendant by said Bridget Fox or Margaret Donlon, or by any other person prior to the time stated in said complaint.” The answer further alleges “that no action or cause of action accrued to said Bridget Fox by reason of said check at any time within six years and upward prior to her decease.” It further alleges “ that" no action or cause of action has accrued to the said plaintiff by reason of the said check or of the matters mentioned and set forth in said complaint at any time within six years next prior to the commencement of this action.” The issues were brought to trial at a Trial Term held in January, 1896. After a jury was called and sworn the defendant moved for a dismissal of the complaint and for judgment upon the pleadings upon the grounds: (1) “ That the complaint does not state facts sufficient to constitute ■a cause of action. (2) That it appears from the complaint and answer that the cause--of action claimed to be alleged in the complaint did not accrue within the six years last past, and is barred by the Statute of Limitations. (3) That it appears that there has not been due presentment of the check and notice of dishonor.” It was then admitted by the defendant: “ That the plaintiff, in •January, 1895, presentid the check for payment to the Chautauqua' 'County National Bank on which it was drawn, and that the bank refused to pay the same because the defendant had no funds deposited in said bank, and that plaintiff immediately thereafter notified the defendant of the facts of presentment and non-payment.” The ■defendant admitted that the bank on which-the check was drawn has been solvent for the last thirty years.” It was then admitted by the defendant and plaintiff “ that the maker and payee of the •check have lived in Jamestown, the place where said bank is located, ■ever since said check was drawn.” Plaintiff then'asked to go to the jury “upon the liability of the defendant upon the check; the •court denied the request, to which ruling the plaintiff duly excepted.” Thereupon the plaintiff asked the court: “ To direct a verdict for the plaintiff on the pleadings and evidence in the case, which the •court denied, and to which ruling the plaintiff duly excepted. The •court thereupon directed a judgment of nonsuit in favor of the ■defendant, to which direction the counsel for the plaintiff duly •excepted.” The case further states that “ the plaintiff then made .a motion for a new trial upon the minutes of the court; which said "motion for a new trial was denied, with costs to defendant. No •order appears in the appeal book. On the 21st day of March, 1896, a judgment was entered, in favor of 'the defendant against the plaintiff “ upon the'issues in this action, dismissing the complaint upon the merits, and for the sum of $83.18 and costs.” The judgment recites that the issues having been tried, a verdict was “ rendered by direction of the court on the 7th day of January, 1896, for no cause of action, dismissing said plaintiff’s complaint.” And it further recites that a motion for a new trial on the judge’s minutes was made and denied, with ten dollars costs. From that, judgment the plaintiff appeals; and' also from the “ order herein denying motion for a new trial made upon the minutes of the court.” The opinion delivered by the trial judge in ' denying the motion is reported, sub nom. Dolon v. Davidson (16 Mise. Rep. 316). Walter L. Sessions, for the appellant. Bootey, Fowler & Weeks, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: Plaintiff’s complaint states a cause of action “upon a contract, obligation or liability.” The case, therefore, falls within the language of section -382 of the Code of Civil Procedure, providing a limitation of six years in which to bring an action. Section 410 of the Code of Civil Procedure provides as follows: “ Where a right exists, but a demand is necessary to entitle a person to maintain ah action, the time within which the action must be commenced, must be computed frtim the time when the right to make the demand is complete.” There, are certain exceptions enumerated in the section not material to mention here. It is apparent from the facts disclosed that the payee did not present the check to the bank within - a reasonable time, and that, Upon the facts disclosed, it was proper to hold as matter of law, that the presentment was not made in a reasonable time. (Bartlett v. Robinson, 39 N. Y. 187.) Inasmuch as this action was not brought until fourteen- years after the date of the. instrument (nor was any demand made within about' fourteen years), we think the Statute of Limitations was properly held to be a defense to the action. (Brust v. Barrett, 16 Hun, 409; S. C. affd., sub nom. Brush v. Barrett, 82 N. Y. 403; Knapp v. Greene, 60 N. Y. St. Repr. 559; S. C., 79 Hun, 264; Wood v. Young, 141 N. Y. 211.) Ye are, therefore, of the opinion that the plaintiff's cause of action was barred by the Statute of Limitations, as the action was brought some fourteen years after the making of the instrument set out in the complaint; and the decision made at the Trial Term should be sustained. All concurred. Judgment and order affirmed, with costs.