Smith v. McLaughlin

251 A.D. 727, 295 N.Y.S. 593, 1937 N.Y. App. Div. LEXIS 7252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1937
• Status: Published

Opinion

Cross-appeals by plaintiff and defendant McLaughlin from an order denying in part and granting in part plaintiff’s motion to strike out the separate defenses contained in defendant McLaughlin’s answer. Order granting plaintiff’s motion to strike out the second, third, fourth, fifth, sixth and eighth separate defenses and denying his motion to strike out the seventh separate defense modified so as to provide that the seventh separate defense also be struck out; and as so modified the order is affirmed, with ten dollars costs and disbursements to plaintiff. The action is brought by plaintiff, as substitute committee of an incompetent, against defendants to recover $2,000, the amount of a bond executed on October 17, 1907, by defendant McLaughlin and by defendant Van Duzer’s decedent, as sureties of the original committee. The twenty-year Statute of Limitations pleaded in the seventh separate defense does not constitute a defense. The statute does not commence to run from the date of the bond but from the breach of the condition which, it is alleged, began in 1923. Hagarty, Davis, Johnston and Taylor, JJ., concur; Lazansky, P. J., not voting.