Opinion
March, 1925.
Order in so far as appealed from, and judgment, reversed on the law, with costs, and plaintiff's motion for judgment granted, with ten dollars costs. A demand was necessary to entitle plaintiff or her predecessors in title to maintain this action, and this cause of action did not accrue until her right to make such demand was complete, under section 410 of the Code of Civil Procedure. ( Reid v. Suprs. of Albany County, 128 N.Y. 364.) During the time she and her grantors were in possession and enjoyment of the property, no demand could be made, and the right to make such demand was, therefore, not complete until she was ousted from possession on March 11, 1918, at which time her cause of action accrued, and is not barred by the Statute of Limitations. (Civ. Prac. Act, § 47.) She is not entitled to interest during the time she was in possession of the property and enjoyed the income thereof, but only from the time of the ouster, March 11, 1918, and such interest will be at the rate of four per cent, pursuant to the covenant contained in the certificate of sale, by which she is bound. Kelly, P.J., Rich, Jaycox, Kelby and Young, JJ., concur. Settle order on notice.
Now Civ. Prac. Act. § 15. — [REP.
See, also, Code Civ. Proc. §§ 380, 381. — [REP.