Marmor v. Bernstein

256 A.D. 1106, 11 N.Y.S.2d 818, 1939 N.Y. App. Div. LEXIS 6306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1939
• Status: Published

Opinion

The first cause of action is to recover moneys loaned to all the defendants on or prior to March 6, 1930. The second cause of action is to recover moneys alleged to have been embezzled by defendant Bernstein. Order denying defendants’ motion for summary judgment reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The first cause of action is not an action on a sealed instrument but is to recover the amount of loans which, on March 6, 1930, were acknowledged to have been made. Assuming that it can be proved that the instrument in which the acknowledgment is contained is a sealed instrument, the acknowledgment operates to revive the debt not for the period applicable to actions on sealed instruments but for the six-year period applicable to simple contracts. (Gilmour v. Johnson, 254 Mass. 294; 150 N. E. 87.) The first cause of action is, therefore, barred by lapse of time. As to the second cause of action, the documents and other- evidence establish (1) that defendant Bernstein personally received no moneys from the mortgagee, and (2) that neither defendant Bernstein nor defendant Ruford Construction Corporation received from -the mortgagee any moneys to which plaintiff was entitled. Hagarty, Johnston, Adel and Taylor, JJ., concur; Lazansky, P. J., dissents and votes to affirm the order.