Nasaba Corp. v. Harfred Realty Corp.

Appellate Division of the Supreme Court of New York

Nasaba Corp. v. Harfred Realty Corp.

261 A.D. 695, 27 N.Y.S.2d 166, 1941 N.Y. App. Div. LEXIS 7411

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 1941

StatusPublished

This text of 261 A.D. 695 (Nasaba Corp. v. Harfred Realty Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nasaba Corp. v. Harfred Realty Corp., 261 A.D. 695, 27 N.Y.S.2d 166, 1941 N.Y. App. Div. LEXIS 7411 (N.Y. Ct. App. 1941).

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Opinion

Per Curiam.

The cause of action stated in the complaint is not one “ to procure a judgment on the ground of fraud ” within the meaning of subdivision 5 of section 48 of the Civil Practice Act. That provision applies only to cases of actual fraud where the proof of fraud is essential to a recovery. It has no application to constructive frauds such as are alleged here. (Hearn 45 St. Corp. v. Jano, 283 N. Y. 139.)

[696]*696If the complaint is construed as an action under either section 60 of the General Corporation Law, or section 15 of the Stock Corporation Law, where' the recovery of a judgment is essential to the accrual of the action, the six-year Statute of Limitations applies. This action was not commenced until more than six years after the entry of the judgment relied on. The claim is barred also under article 10 of the Debtor and Creditor Law, where the cause of action runs from the date of the transfers complained of. (Buttles v. Smith, 281 N. Y. 226.) The complaint cannot be considered as a creditor’s bill in equity since none of the relief characteristic of such actions is demanded. (Hearn 45 St. Corp. v. Jano, supra.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.

Present — Martin, P. J., O’Malley, Townley, Dore and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.

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Per Curiam.

The cause of action stated in the complaint is not one “ to procure a judgment on the ground of fraud ” within the meaning of subdivision 5 of section 48 of the Civil Practice Act. That provision applies only to cases of actual fraud where the proof of fraud is essential to a recovery. It has no application to constructive frauds such as are alleged here. (Hearn 45 St. Corp. v. Jano, 283 N. Y. 139.)

[696]*696If the complaint is construed as an action under either section 60 of the General Corporation Law, or section 15 of the Stock Corporation Law, where' the recovery of a judgment is essential to the accrual of the action, the six-year Statute of Limitations applies. This action was not commenced until more than six years after the entry of the judgment relied on. The claim is barred also under article 10 of the Debtor and Creditor Law, where the cause of action runs from the date of the transfers complained of. (Buttles v. Smith, 281 N. Y. 226.) The complaint cannot be considered as a creditor’s bill in equity since none of the relief characteristic of such actions is demanded. (Hearn 45 St. Corp. v. Jano, supra.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.

Present — Martin, P. J., O’Malley, Townley, Dore and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.

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Bluebook (online)

261 A.D. 695, 27 N.Y.S.2d 166, 1941 N.Y. App. Div. LEXIS 7411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nasaba-corp-v-harfred-realty-corp-nyappdiv-1941.

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