Classen-Smith v. National City Bank

New York Court of Appeals

Classen-Smith v. National City Bank

48 N.E.2d 265, 290 N.Y. 70, 1943 N.Y. LEXIS 1139

CourtNew York Court of Appeals

DecidedMarch 4, 1943

StatusPublished

Cited by2 cases

This text of 48 N.E.2d 265 (Classen-Smith v. National City Bank) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Classen-Smith v. National City Bank, 48 N.E.2d 265, 290 N.Y. 70, 1943 N.Y. LEXIS 1139 (N.Y. 1943).

Pincite

Opinion

*72 Per Curiam.

Motion under rule 107, subdivision 6, of the Buies of Civil Practice for judgment dismissing the complaint upon the ground that the causes of action stated did not accrue within the time limited by law for the commencement of an action thereon. The complaint of the plaintiffs purports to state two separate alternative causes of action. Each contains allegations that a sum of money was deposited with defendant on behalf of the plaintiffs and that there has been a refusal of payment after demand made. Assuming, as we must for the purposes of this motion, that the facts are as pleaded, there *73 may be no recovery if plaintiffs had actual knowledge for more than six years before action brought of the facts presented in the voluminous affidavits and documentary exhibits submitted to us. (Civ. Prac. Act, § 15; see Tillman v. Guaranty Trust Go., 253 N. Y. 295.) Proof of such knowledge may depend upon the contents of a letter, a copy of which is attached both to the moving papers and to the papers in opposition. The copies differ slightly in wording. Each of the parties draws favorable inferences from the letter. We do not think that it is so conclusive against plaintiffs that it justifies a dismissal of the complaint under rule 107, subdivision 6, of the Buies of Civil Practice. (Transbel Investment Co. v. Venetos, 279 N. Y. 207, 213.)

The judgment of the Appellate Division should be reversed and the order of Special Term” affirmed with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

Free access — add to your briefcase to read the full text and ask questions with AI

*72 Per Curiam.

Motion under rule 107, subdivision 6, of the Buies of Civil Practice for judgment dismissing the complaint upon the ground that the causes of action stated did not accrue within the time limited by law for the commencement of an action thereon. The complaint of the plaintiffs purports to state two separate alternative causes of action. Each contains allegations that a sum of money was deposited with defendant on behalf of the plaintiffs and that there has been a refusal of payment after demand made. Assuming, as we must for the purposes of this motion, that the facts are as pleaded, there *73 may be no recovery if plaintiffs had actual knowledge for more than six years before action brought of the facts presented in the voluminous affidavits and documentary exhibits submitted to us. (Civ. Prac. Act, § 15; see Tillman v. Guaranty Trust Go., 253 N. Y. 295.) Proof of such knowledge may depend upon the contents of a letter, a copy of which is attached both to the moving papers and to the papers in opposition. The copies differ slightly in wording. Each of the parties draws favorable inferences from the letter. We do not think that it is so conclusive against plaintiffs that it justifies a dismissal of the complaint under rule 107, subdivision 6, of the Buies of Civil Practice. (Transbel Investment Co. v. Venetos, 279 N. Y. 207, 213.)

The judgment of the Appellate Division should be reversed and the order of Special Term” affirmed with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

Cite This Page — Counsel Stack

Bluebook (online)

48 N.E.2d 265, 290 N.Y. 70, 1943 N.Y. LEXIS 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/classen-smith-v-national-city-bank-ny-1943.

Opinion

Related

Cite This Page — Counsel Stack