102 A. 667 (N.J.L. 1917), 40, Gogolin v. Williams

Docket Nº:40
Citation:102 A. 667, 91 N.J.L. 266
Opinion Judge:MINTURN, J.
Party Name:WILHELM GOGOLIN ET AL., APPELLANTS, v. ALFRED W. WILLIAMS, RESPONDENTS
Attorney:For the appellants, Leonard Van Lenten. For the respondent, Mackay & Mackay.
Judge Panel:For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, JJ. 12.
Case Date:November 19, 1917
Court:Supreme Court of New Jersey
 
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Page 667

102 A. 667 (N.J.L. 1917)

91 N.J.L. 266

WILHELM GOGOLIN ET AL., APPELLANTS,

v.

ALFRED W. WILLIAMS, RESPONDENTS

No. 40

Court of Errors and Appeals of New Jersey

November 19, 1917

Submitted July 9, 1917.

On appeal from the Supreme Court.

For the appellants, Leonard Van Lenten.

For the respondent, Mackay & Mackay.

OPINION

MINTURN, J.

The plaintiffs, in the year 1907, employed defendant, a surveyor, to make a survey and map of their property, in the township of Saddle River. Thereafter, in 1910, the plaintiffs erected two houses on the land thus surveyed, and in 1915 they discovered that the survey and map included land to which they had no title, and which they were thereby obliged to purchase at a cost of $1,500. Before pleading in defense, defendant moved to strike out the complaint [91 N.J.L. 267] upon the ground that the cause of action, if any existed, was barred by the statute of limitations.

Page 668

The justice who heard the motion denied it, with leave to defendant to plead over, which was done; the answer alleging the bar of the statute of limitations. The parties proceeding to trial a judgment of nonsuit was directed upon the pleadings. The legal inquiry presented is whether the statute begins to run from the time the survey and map were completed, under the contract of employment, in which event the direction of the nonsuit was correct; or from the time of the plaintiffs' discovery of the error, in which case the statute will not be applicable as a bar to plaintiffs' recovery.

It is to be observed that the gravamen of the action is the hiring of a professional man to perform a service, within the line of his profession, which he negligently performed to the damage of the person employing him. In such a situation, quite uniformly, the rule has been declared to be that the statute of limitations begins to run from the time of the occurrence of the breach of duty, and not from the time of the discovery of actual damage, as a result of such breach.

The cases upon the subject are collected in the various digests, and a reference to some of them is all the determination of this case would seem to require. Wilcox v. Plumner, 4 Pet. (U.S.) 172; Troup v. Smith, 20 Johns. (N.Y.) 33; Freeholders v. Veghte, 44 N.J.L. 509; 13 Am. & Eng. Ann. Cas. 696; 25 Cyc. 1083-1116.

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