Ella G. Libby, Appellant, v. Edmund Van Derzee and Others, Respondents

Ella G. Libby, Appellant, v. Edmund Van Derzee and Others, Respondents. Statute of Limitations — within what time after a ward comes of age an action must be brought to compel her general guardian to account — the action is not based on fraud. The complaint in an action brought in April, 1901, against the executors of a decedent, who was the general guardian of the plaintiff, to recover money-alleged to belong to the latter, stated that the deceased was appointed her general guardian January 13, 1864, and that he received the money in question thereafter; that he died on January 22, 1892, without having rendered an account; that the defendant executors were appointed March 16,1892, and that the money had gone into their hands; the plaintiff attained her majority in January, 1885. The complaint further alleged that the plaintiff had never received any part of the money and that she only learned the facts stated, with the exception of the fact of the guardian’s death, within three months before the commencement of the action. Held, that the action was barred by the Statute of Limitations; That subdivision 5 of section 382 of the Code of Civil Procedure, which provides that a cause of action is not deemed to have accrued until the discovery of the facts constituting the fraud, did not apply as the complaint did not allege fraud. Semble, that the plaintiff was required to bring the action within six years after attaining her majority. Appeal by the plaintiff, Ella G-. Libby, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 2d day of April, 1902, upon the decision of the court, rendered after a trial at the Richmond Special Term, dismissing the complaint upon the pleadings. J. J. Bennett, for the appellant. William D. G-aillamd, for the respondents. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff seeks to recover a money judgment against certain of the defendants, who are the executors of John H. Van Clief, deceased, who was her general guardian. She has joined as party defendants the children of said deceased and certain other persons, who, she says, were also wards of the said deceased; but why these children and wards are joined as defendants does not very clearly appear. The ground of the action is contained in the allegations that the said deceased was duly appointed her guardian on January 13, 1864; that he received the money in question thereafter; that he died on January 22, 1892, without having rendered an account of his proceedings as her guardian; that the defendant executors were appointed as such on March 16, 1892, and that the money has gone into their hands. The complaint further alleges that the plaintiff has never received any part of the money, and that she only learned the facts stated, including the fact of the receipt of the money by her guardian, excepting the fact of the death of her guardian, within three months before the commencement of the action. The action was commenced in April, 1901. The answers, among other defenses, set up the Statutes of Limitation. Each side asked judgment upon the pleadings at the trial, and the appeal is from the judgment entered upon the granting of the defendant’s motion. The decision in Matter of Van Derzee by the General Term in this department (73 Hun, 532) is directly in point. The application was there instituted against these executors by one of the defendants to this action, who was a ward of the deceased, to compel an accounting, and it was held that the remedy was barred at the end of six years from the time the ward became of age. The court said (p. 534): “ The relation existing between the petitioner and his guardian from that time was that of debtor and creditor, and the six years’ Statute of Limitations would apply because such an action would be based upon an implied contract to pay over money belonging to the plaintiff.” (See, also, Busw. Stat. Lim. 474, and cases cited in note.) The case of Matter of Sack (70 App. Div. 401) was that of an action brought against the guardian in his lifetime, and may be dis- " tinguished by that fact from the case at bar. Here the plaintiff certainly came of age in January, 1885, and could not only have maintained an action against her guardian during the remaining seven years of his lifetime, but could have compelled an accounting by the defendant executors immediately upon their appointment in March, 1892. (Matter of Wiley, 119 N. Y. 642.) The decision in this department must control the determination of this appeal unless a different rule of law is to be applied to the claims of the various wards of the deceased. The learned counsel for the appellant claims that the question of limitations is to be governed by subdivision 5 of section 382 of the Code of Civil Pi’ocedure, which provides that the cause of action is not deemed to have accrued until the discovery of the facts constituting the fraud. The action in this case is not to procure a judgment on the ground of fraud, and no fraud is alleged in the complaint. The provision referred to has, therefore, no application. The judgment should be affirmed. Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred. Judgment affirmed, with costs.