Austin v. Maguire

Full title: DOROTHY R. AUSTIN, as Ancillary Executor of FRANKLIN B. RICHARDS…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 28, 1943

266 App. Div. 226 (N.Y. App. Div. 1943)

42 N.Y.S.2d 41

Opinion

May 28, 1943.

Appeal from Supreme Court, New York County, VALENTE, J.

Hiram Thomas of counsel ( William C. Breed, Jr., with him on the brief; Breed, Abbott Morgan, attorneys), for appellant.

William Allen of counsel ( Thomas H. Allen with him on the brief; Allen Allen, attorneys), for respondent.

Per Curiam.

Special Term properly denied the motion under rule 106 to dismiss the first cause of action which sets forth a good cause of action for the alleged breach of a unilateral contract. But the court erred in dismissing that cause as barred by the Statute of Limitations. Defendant's letter dated December 14, 1937, in answer to the letter of plaintiff's testator dated December 13, 1937, constitutes a sufficient acknowledgment or promise interrupting the running of the statute on December 14, 1937. This action was commenced on June 10, 1942. By reason of the facts alleged relating to the tolling of the statute, the first cause of action should not have been dismissed on motion under rule 107 of the Rules of Civil Practice, but the issue should await trial.

We think too the court erred in dismissing for insufficiency the second cause of action alleging an account stated between plaintiff's testator and defendant. The allegations of the second cause of action, read with the letters of December 13th and 14th annexed thereto, sufficiently set forth claimed agreement of the parties made after prior transactions, showing a claimed balance due, defendant's promise to pay, demand, and nonpayment, or at least the trier of the facts could so find. ( Schutz v. Morette, 146 N.Y. 137; Moss v. Lindblom, 39 App. Div. 586.) All issues should await trial.

The order appealed from should be reversed, with twenty dollars costs and disbursements, and defendant's motion under rules 106 and 107 denied, with leave to the defendant to answer within ten days after service of order, on payment of said costs.

MARTIN, P.J., DORE and CALLAHAN, JJ., concur; UNTERMYER and COHN, JJ., dissent as to the second cause of action and vote to affirm as to it.

Order reversed, with twenty dollars costs and disbursements, and motion to dismiss the amended complaint pursuant to rules 106 and 107 of the Rules of Civil Practice denied, with leave to the defendant to answer within ten days after service of order, on payment of said costs.