Cockshaw v. Guaranty Trust Co.

282 A.D. 688, 122 N.Y.S.2d 434

Opinions

Per Curiam.

The complainant in this action meticulously asserts a cause of action based on tort by a depositary in permitting a trustee to convert entrusted assets left with the depositary. To that precise cause of action the defense of the three-year Statute of Limitations applies, and is sufficient. We pass on no other cause of action not pleaded. Facts which may charge one with actual or constructive knowledge are not relevant in determining whether the three-year Statute of Limitations applies. The situation might be different in a case where fraud was the gravamen. In this case appellant vigorously and very frankly claims that there was no fraud present. The sufficiency of pleadings may be judged only by the allegations. It is not practicable to speculate as to how the proof may vary therefrom, and in that event what the situation will be with respect to defenses pleaded. The order should be affirmed.