Haight v. Halsey

255 A.D. 1005, 8 N.Y.S.2d 510, 1938 N.Y. App. Div. LEXIS 6240

Opinion

On appeal by defendant from a final judgment in favor of plaintiff in an action for an accounting, entered on the decision of an official referee, bringing up for review the interlocutory judgment granting the accounting, final judgment and interlocutory judgment unanimously affirmed, with costs. The amount awarded in the final judgment is not in dispute, and the interlocutory judgment is amply supported by the evidence. The defense of the Statute of Limitations is not available to defendant. On the theory that he was a trustee for plaintiff’s testator, the action was commenced within ten years after defendant repudiated the trust. The cause of action alleged in the complaint and established by the evidence in reality arose out of defendant’s breach of an agreement made by him with plaintiff. The breach occurred within a month before the action was commenced, and for this breach plaintiff had no legal remedy and was entitled to an accounting. Present — Hagarty, Carswell, Adel, Taylor and Close, JJ.