Devoe v. Lutz
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Stephen W. Devoe, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of January, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to certain affirmative defenses contained in the said defendants’ amended answer.
1DissentGaynor, J.
The cause of action alleged is for money had and received, but the plaintiff seems to have framed his complaint as if to obtain an accounting of the defendant" as trustee. In this dubious condition of the complaint the defendants, wanting to plead the statute of limitations, pleaded both the limitation of six years to the action as a common law one and that .of ten years to it as in equity upon a breach of trust and for an accounting, so that on whichever theory the plaintiff, should proceed on the trial he could be met with a bar of the appropriate statute. This was entirely proper. And the…
2Cases cited5 opinions
- Douglass v. Phenix InsuranceNew York Court of Appeals · 1893
- Stieffel v. TolhurstAppellate Division of the Supreme Court of the State of New York · 1900
- Flack v. O'BrienNew York Supreme Court · 1897
- Flechter v. JonesNew York Supreme Court · 1892
- Frank v. MillerAppellate Division of the Supreme Court of the State of New York · 1907