Opinion
October 11, 1943.
Order of the County Court, Suffolk County, granting defendant's motion for judgment on the pleadings and dismissing plaintiff's complaint, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. It is a fair inference from the record that plaintiff's automobile was delivered to the defendant on the 6th day of February, 1934, to be sold and the proceeds applied to the purchase of another car. Some time later, the car was sold for $350, from which the defendant deducted $50 and held the balance of $300 for the benefit of the plaintiff. Thereafter two demands were made by plaintiff on the defendant that he sell to her another automobile and apply the $300 on account of the purchase price, both of which were refused. The first of these demands was made on the 25th day of May, 1938, and the second on the 5th day of November, 1939. After the second demand was made and refused, plaintiff demanded the money. This action was commenced on the 5th day of December, 1942. We are of opinion that the complaint should not have been dismissed on the pleadings on the ground that the action was barred by the Statute of Limitations. (See Civ. Prac. Act, § 15.) Hagarty, Carswell, Johnston, Taylor and Lewis, JJ., concur.