Manrara v. Murphy

New York Court of Appeals

Manrara v. Murphy

70 N.E.2d 17, 296 N.Y. 65

DecidedNovember 14, 1946

StatusPublished

This text of 70 N.E.2d 17 (Manrara v. Murphy) 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

Manrara v. Murphy, 70 N.E.2d 17, 296 N.Y. 65 (N.Y. 1946).

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Opinion

Per Curiam.

The appellants in their brief limit the appeal to so much of the judgment appealed from as “ dismisses the second and third causes of action in the amended complaint ”.

In connection with the second cause of action, we are concerned with the Statute of Limitations applicable to an action by a judgment creditor under section 1189 of the Civil Practice Act to reach property conveyed in fraud of creditors and to subject it to the satisfaction of his demand. Since no limitation of time for the commencement of such an action is specially prescribed by any statute, section 53 of the Civil Practice Act applies, and the time limited by that section is 61 ten years after the cause of action accrues.” Section 1189 of the Civil Practice Act provides that the judgment creditor may maintain the action when an execution against the property of the judgment debtor has been returned wholly or partly unsatisfied. The alleged fraudulent transfer was made prior to the return of execution unsatisfied on June 14, 1933, and accordingly the action accrued on that date. The present action was commenced on April 23, 1945, more than ten years thereafter. The fact that a second execution on the same judgment was returned unsatisfied on April 9, 1945 — less than ten years before the commencement of this action — did not revive the action, which “ accrued ” on June 14,1933, and was barred on June 14,1943.

The third cause of action is claimed to be an action for actual *68 fraud which was not discovered hy the plaintiffs until less than six years before the action was commenced. Statements under oath made by one of the plaintiffs and hy plaintiffs’ counsel disclose that the fraud, if any, was known to the plaintiffs and their counsel more than ten years before the action was commenced.

We are constrained to conclude that the second and third causes of action were properly dismissed.

The judgment should he affirmed, with costs.

• Loughran, Oh." J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ., concur.

Judgment affirmed.

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Per Curiam.

The appellants in their brief limit the appeal to so much of the judgment appealed from as “ dismisses the second and third causes of action in the amended complaint ”.

In connection with the second cause of action, we are concerned with the Statute of Limitations applicable to an action by a judgment creditor under section 1189 of the Civil Practice Act to reach property conveyed in fraud of creditors and to subject it to the satisfaction of his demand. Since no limitation of time for the commencement of such an action is specially prescribed by any statute, section 53 of the Civil Practice Act applies, and the time limited by that section is 61 ten years after the cause of action accrues.” Section 1189 of the Civil Practice Act provides that the judgment creditor may maintain the action when an execution against the property of the judgment debtor has been returned wholly or partly unsatisfied. The alleged fraudulent transfer was made prior to the return of execution unsatisfied on June 14, 1933, and accordingly the action accrued on that date. The present action was commenced on April 23, 1945, more than ten years thereafter. The fact that a second execution on the same judgment was returned unsatisfied on April 9, 1945 — less than ten years before the commencement of this action — did not revive the action, which “ accrued ” on June 14,1933, and was barred on June 14,1943.

The third cause of action is claimed to be an action for actual *68 fraud which was not discovered hy the plaintiffs until less than six years before the action was commenced. Statements under oath made by one of the plaintiffs and hy plaintiffs’ counsel disclose that the fraud, if any, was known to the plaintiffs and their counsel more than ten years before the action was commenced.

We are constrained to conclude that the second and third causes of action were properly dismissed.

The judgment should he affirmed, with costs.

• Loughran, Oh." J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ., concur.

Judgment affirmed.

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Bluebook (online)

70 N.E.2d 17, 296 N.Y. 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manrara-v-murphy-ny-1946.