Butler v. Foster

246 A.D. 680

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1935
• Status: Published

Opinion

Order affirmed, with ten dollars costs and disbursements. Memorandum. On account of the form of the motion we are not passing upon the various counts of the complaint separately, but are treating the complaint as a whole. We think that sufficient is shown to constitute a cause of action when the complaint is liberally construed in favor of the pleader and that it is an action against a trustee or agent acting in a fiduciary capacity and that persons against whom the defendants’ wrong was done are not shown to have had actual knowledge of the facts upon which their right depends -until after the death of the executor Costello and that the Statute of Limitations is not, therefore, a defense as matter of law. This ruling does not prevent the defendants from pleading the Statute of Limitations. All concur. (The order denies motion to dismiss complaint in an action to recover funds held in trust lost in purchase of stocks.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ. [156 Misc. 250.]