In re the Estate of Cole

41 N.Y. Sup. Ct. 320

Opinion

Landon, J.:

We think the decree should be affirmed for the reason that the husband received the $5,000, as the surrogate has found, “ for the use and benefit ” of his wife, and therefore no demand was necessary, and hence the statute of limitations began to run from the day of the receipt of the money. (Stacy v. Graham, 4 Kern., 492; Howard v. France, 43 N. Y., 593.)

Tbe test of tbe necessity for a demand is wbetber it was then and there the legal duty of the husband to pay this money to his wife. It was her money and not his. He received it for her use and benefit and not for his own. He kept the money that was her due. If he could lawfully withhold it from her, it must be by virtue of some understanding or contract with her, and none is shown. Such contract or understanding exists in the case of a deposit of money with a bank, or a special deposit to be gratuitously kept and returned in specie.

In Boughton v. Flint (74 N. Y., 476), the husband offéred to pay the wife, but she requested him to keep the money until she asked for it, and therefore demand was necessary.

Decree of the surrogate affirmed, with costs.

LEARNED, P. J., and BooKes, J., concurred.

Decree affirmed, with costs against appellant.