Miller v. Wood

The action is brought to recover damages alleged to have been sustained by the plaintiff in consequence of certain false and fraudulent representations made by the defendant Lincoln, at the instigation of the defendant Wood, whereby the plaintiff was induced to purchase of Wood, at its face value, a mortgage purporting to be a security for the payment of $800, which was in fact worthless.

The only question is whether the action is barred by the statute of limitations. The alleged fraud was practiced, and the purchase made, in May or June, 1878. The action was commenced on the 23d of September, 1885. The only relief demanded in the complaint is a money judgment for the amount of damages alleged to have resulted from the alleged fraud.

As an action for damages, it is within the six years’ limitation, and is consequently barred, unless it is excepted by the statute from that limitation. The six years’ limitation applies to an action to recover damages for an injury to property (Code Civil Pro., § 382, sub. 3), and “an injury to property” is defined by the Code to be “ an actionable act, whereby the estate of another is lessened, other than a personal injury or the breach of a contract.” (Sec. 3343, sub. 10.) By this circumlocutory process, the Code brings an action to recover damages for fraud and deceit within the six years’ limitation.

The plaintiff’s counsel contends that the evidence shows that the defendants fraudulently concealed from the knowledge of the plaintiff the fact that their representations were false and the mortgage was worthless until a few months before the suit was commenced, and that for that reason the statute does not apply.

In support of that contention, the counsel is understood to rely upon the fifth subdivision of section 382 of the Code. That subdivision provides that in an action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the Court of Chancery, the cause of action is not deemed to have accrued, until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. That provision has no application to a case in which, as here, the only relief sought is a money judgment, by way of compensation for damages. It is *602intended to apply to cases in which the relief sought is, wholly or in part, such as was formerly within the peculiar province of the Court of Chancery. The Revised Statutes provided that bills in equity for relief, on the ground of fraud, should be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time. (2 R. S., 301, § 51.) That statute was held to give six years after the discovery of the fraud, on a bill filed, even in cases where there was a concurrent remedy at law. (Mayne v. Griswold, 3 Sandf. Supr. Ct. R., 463; Bertine v. Varian, 1 Edw. Ch. R., 343.) The original Code provided that in an action for relief, on the ground of fraud, the cause of action is not to be deemed to have accrued until the discovery of the fraud. (Laws 1848, p. 512, chap. 379, § 71, sub. 6.) But by an amendment in 1849, that provision was limited to cases which, prior to the Code, were solely cognizable by the Court of Chancery. (Laws 1849, p. 635, chap. 438, § 91, sub. 6.) The provision, as thus amended, was held not to apply to cases formerly cognizable in chancery, in which there was a concurrent remedy at law. (Foot v. Farrington, 41 N. Y., 164.) To avoid the harshness of that rale,the fifth subdivision of section 382 of the present Code was adopted. (See Throop’s note to same.) That subdivision has been held to include all cases formerly cognizable by the Court of Chancery, whether its jurisdiction therein was exclusive or concurrent with that of courts of law, in which any remedy or relief is sought for aside from or in addition to a mere money judgment, and which a court of law could not give, although as part of the relief sought a money judgment is also demanded. (Carr v. Thompson, 87 N. Y., 160.) But, as has been said, when the only relief asked for is a money judgment for damages, the provision does not apply.

Furthermore, the complaint alleges that in August, 1878, “and at divers times between that date and January 1, 1885, this plaintiff was informed that said mortgage was not a good mortgage security for its face value, and that it was a second mortgage.” As the facts of which the plaintiff was thus informed constituted substantially the subject of the alleged misrepresentations and concealment, the nonsuit may be maintained on the ground that the fraud was disclosed to the plaintiff more than six years before the suit was commenced.

*603We think the motion for a new trial should be denied and judgment ordered for the defendants on the nonsuit.

Motion for new trial denied and judgment ordered for defendant on the nonsuit.