Sands v. Annesley

56 Barb. 598, 1870 N.Y. App. Div. LEXIS 16

• Court: New York Supreme Court
• Decided: May 10, 1870
• Status: Published

Opinion

By the Court,

Boardman, J.

A personal demand of the amount assessed must be made, before an action can be brought against the maker of such notes. (Laws of 1853, 909, § 13.) The cause of action accrues when the right to prosecute the action begins. Such is a literal reading of the statute. As the right of action upon these notes is regulated by statute, such statute must be complied with.

The courts, so far as any opinion has been intimated, have sustained this construction. In Sands, receiver, v. Sanders, (26 N. Y. Rep. 239,) Emott, J., page 249, says: “Ho action can be brought upon such an assessment until after the expiration of thirty days from such publication, nor until personal demand has been made for payment.” “All the requisites of the statute must be complied with before the makers of premium notes can be compelled to pay assessments upon them;” and at page 250, “a personal demand is required by the statute, in addition to the notice of publication.” To the same effect is Devendorf, receiver, v. Beardsley, (23 Barb. 656, 663.) “ Such a note is payable on demand.” So too in Howland, receiver, v. Cuykendall, (40 id. 320,) Allen, J., says: “ Before a cause of action could accrue upon the note, notice of assessment was required to be given, and demand of payment made. The note was only payable upon actual demand after” notice of assessment, &c. Again : “ Had the plaintiff brought suit before personal demand of the defendant, he would have failed.” (See also Sands, receiver, v. St. John, 36 Barb. 628, 634.) The statute of limitations was not therefore a bar to this action.

The objection to the allowance of interest from the 22d of August, 1860, when the assessment became payable, is overthrown by Hyatt, receiver, v. Wait, (37 Barb. 29, 43,) where the same question is considered and decided against the defendant. It is understood that this court has followed that decision in Sands; receiver, v. Dunlop, not reported.

Two cases (Bangs, receiver, v. McIntosh, 23 Barb. 591, and Bangs, receiver, v. Baily, 37 id. 630) are cited in apparent if not real hostility to this doctrine. But in both cases the assessment was less than the whole' amount of the notes in suit. In those cases the court held that the recovery could not exceed the amount of the note, and that the remainder of the recovery, after deducting the asssessment, was money in the hands of the receiver in security for future assessments. In the last case Davis, J., says, page 634: “ The company is authorized to sue for any assessment, and it is clear in such a suit interest would be recoverable on the assessment from the time it fell due.” The present action is of that precise character. Without questioning these two cases, I think they may be distinguished from the one under consideration.

[Broome General Term, May 10, 1870.

If my conclusions are correct, this judgment should be affirmed with costs.

Balcom, Murray, Barter and Boardman, Justices.]