Best v. Davis Sewing Mach. Co.

In December, 1877, the National Trust Company of New York became insolvent, and the plaintiff was appointed receiver of its property. Final judgment of dissolution was entered in April, 1879, under which the plaintiff was continued as receiver. Among the assets which carné into his hands were 10 bonds purporting to be made by the Davis Sewing Machine Company, for the sum of $1,000 each, which, by their terms, were due on November 1, 1876. These bonds, it would appear, had been pledged with the trust company as collateral for a loan to the Security Bank of Watertown, which remained unpaid at the time the receiver was appointed. In February, 1878, the Davis Sewing Machine Company (by leave of this court) brought against the receiver an action of replevin for the bonds, demanding judgment for their possession, and damages for their detention. The answer of the receiver claimed a lien thereon for the unpaid balance of the loan for which they were pledged as security. A trial was had upon the issue thus raised in July, 1878, which resulted in favor of the Sewing Machine Company, awarding them possession, and adjudging that the receiver had no title to or right t.o the possession of the bonds. This judgment was by the general term reversed on October 19, 1883, and a new trial ordered. In May, 1884, the re-trial was had, which resulted in a judgment in favor of the receiver, awarding him possession of the three bonds which are the subject of the present suit. From this judgment an appeal was taken to both the'general term (35 Hun, 665) and the court of appeals, (11 N. E. Rep. 146,) and the right of the receiver to the possession of the three bonds was finally affirmed. This suit was commenced as to some of the defendants in March, and as to others in April, 1884. It will be noticed that from July, 1878, to October, 1883, there was a valid outstanding judgment against the receiver, denying his ownership or right to the possession of these bonds, and awarding their possession to defendant. It is conceded that if, during this period, while the judgment was outstanding, the running of the'statute of limitations was riot suspended, then the statute is a bar to the action; for, the obligation being promissory notes, and not sealed instruments, the six-years statute of limitations applies. The Code provides, (section 406:) “AVhere the commencement of an action has been stayed by injunction, or by other order of a court or judge, or by a statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action.” Although there is much force in the argument of appellant that “ the effect of the action *733of replevin and the judgment therein against the receiver was more potent than an injunction or other order of the court, for it not only barred his remedy on the obligations, but judicially denied his right to their possession,” it must be conceded that the judgment is not one of the exceptions provided by the Code preventing the running of the statute. The question, therefore, is presented whether there is any ground, other than the exceptions provided by statute, which will suspend the running of the statute of limitations after it has once commenced to run. We agree with the view expressed by the learned judge below “that the rule is well settled that a party who seeks to avoid the statute, notwithstanding the lapse of the prescribed period, must bring himself expressly within some of the exceptions specified in the Code.” In the case of McQueen v. Babcock, 41 Barb. 337, it was decided that a right of action not expressly stayed or prevented by an injunction must be prosecuted within the prescribed period, or it is barred. In the case of Sanford v. Sanford, 62 N. Y. 553, the debtor was declared a lunatic, and had no committee who could be served. Although the argument was there made that for this reason the statute did not run, the court held that there was no provision for an exception in such a case. We think that the authority of this case, and an examination of the earlier cases, will show that the statute, when once it commenced to run, was not suspended, except pursuant to some other express provision of law; and it was to abate the rigor of this rule that caused the enactment of section 406 of the Code. In view of the clear and satisfactory opinion of the learned judge below, it is unnecessary for us to do more than adopt his reasoning and concur in the result reached by him. We are therefore of opinion that the judgment appealed from should be affirmed, with costs.