Gotfried v. Barrett

125 Misc. 111, 210 N.Y.S. 245, 1925 N.Y. Misc. LEXIS 836

Opinions

Per Curiam:

Concededly, when this action was brought, a period of over six years had run from any date properly fixable as marking a reasonable time for performance under the original contract. The only debatable question in the case is whether anything occurred which may be given the effect of extending the defendant’s time for performance. All that is urged in that regard is that certain implications may and should be drawn, in plaintiff’s favor, from a demand made by him upon defendant for performance. That demand was made in September, 1918. It is not disputed that unless that particular demand caused an extension of the time for performance, the defense of the Statute of limitations must govern the decision. The following transpired on that occasion. The plaintiff went to one of the offices of the defendant and, in a conversation with a clerk or other representative of the defendant, he demanded either his pass book or his money, and the defendant’s representative said to him: “ The book will arrive,” whereupon the plaintiff, without anything more being said or done by either him or the clerk, left the defendant’s office. We fail to perceive how this can be said to have taken the case out of the statute. (Civ. Prac. Act. § 48, subd. 1.)

Judgment reversed, with thirty dollars costs, and complaint dismissed upon the merits, with costs.

Mullan and Cotillo, JJ., concur; Bijur, J., dissents in opinion.