Israel O. Blake, Appellant, v. George C. Clausen, Respondent

Israel O. Blake, Appellant, v. George C. Clausen, Respondent. Corporations — liability of trustees for a failure to file an annual report—Statute of Limitations, once set running, when not stayed by a renewal note. When the Statute of Limitations once begins to run against the liability of a trustee of a corporation, to a creditor thereof, arising out of a failure to file an. annual report, the running of the statute cannot be stayed or suspended by a renewal note accepted by the creditor from the corporation, after the maturity of the note renewed, for the amount of its indebtedness to him. <¡¡uare, whether the running of the statute will be prevented by the giving of a renewal note before the original note, given to secure the loan made by the creditor to the corporation, is over due. Appeal l)y the plaintiff, Israel O. Blake, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kew York on the 9tli day of April, 1896, upon the decision of the court rendered after a trial before the court without a jury at a Trial Term of the Supreme Court held in and for the county of Hew York. Philip Carpenter and Edward Hassett, for the appellant. Samuel Untermyer and Moses Weinman, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The action, which was commenced September 19, 1891, was brought to charge the defendant, as trustee of the Brewers’ Ice Company, with liability upon a claim of $6,000, the amount of a loan made by plaintiff to the company on December 22, 1886, for a failure of the company to file its annual report. All the allegations of the complaint ai’e admitted by the answer. The sole defense is the Statute of Limitations. A six months’ note was given for the loan, which became due June 25, 1887. On that day a renewal note was given, which became due October 28, 1887. This latter note was allowed to run along without renewal from the date of its maturity, October 28, 1887, until April 2,1888, when a new note was given, due in April,. 1889, and then the final note was given, due April 5, 1890. This latter date is the one from which the appellant insists the three years’ Statute of Limitations began to run. All that need he added to the opinion of the learned trial judge is, that if we should not hold the statute as beginning to run at the date of the maturity of the first note in June, 1887, and assume that by the renewal of the note and the extension until October 28,1887, the running of the statute was suspended for that intervening period, then clearly the debt was due and the plaintiff could have enforced the liability on October 28, 1887. As stated, from that date until April 2, 1888, while there is evidence tending to show that there was an oral extension, no note was given to secure the debt, and the plaintiff was at liberty at any time during that period to commence an action and enforce the debt against the corporation. An action, however, upon that note which matured October 28,1887, is equally barred by the Statute of Limitations, for the statute then commenced to run; and if once set in motion, it could not be stayed or suspended by the new note which was given in April, 1888. Apart, therefore, from the question whether the statute commenced to run when the first note matured, we think it clear that it did commence to run in October, 1887, and thereafter was not suspended, so that the action, not having been brought within three years thereafter, was barred. The judgment was right and should be affirmed^ with costs. Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred. Judgment affirmed, with costs.