40 N.Y. 533, Gandolfo v. Appleton

Citation:40 N.Y. 533
Party Name:JAMES GANDOLFO, Respondent, v. THOMAS APPLETON, Appellant.
Case Date:June 16, 1869
Court:New York Court of Appeals

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40 N.Y. 533




New York Court of Appeal

June 16, 1869

Argued Apr. 5th, 1869.

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Samuel Hand, for the appellant, insisted that the demand,

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the plaintiff having rested nine years, was stale, and could not be enforced in a court of equity, although the statute of limitations was not strictly applicable, the defendant being a non-resident of the State. That courts of equity will not entertain stale demands, though no statute of limitation exists, he cited 2 Stor. Eq. Jur., § 529-1520; Ray v. Bogart (2 John. Cases, 432, Court of Errors); Giles v. Barremore (5 Johns. C. R., 550-557); Rayner v. Pearsall (3 Johns. Ch., 578); Sir. THOS. PLUMER in Cholmondeley v. Clinton (2 Jac. and Walk., 141); Fonblanque's Eq., Bk. 1, chapter 4, § 27; Bell v. Bremen (3 Murphy, N. Car., 273); Hercy v. Dinwoody (4 Bro. C. C., 257); Coleman v. Lyne (4 Rand., Va., 354); Bridger v. Mitchell (Bunbury, 224); Heartt v. Corning (3 Paige, 556).

The plaintiff having received all the assets of the firm, agreed by both parties to be more than the liabilities, and having never given an account of them, must first do so before he can call for an account or put the defendant in default. (Towsley v. Dennison, 45 Barb., 490, and cases cited there; Lupton v. White, 15 Vesey; McCartan v. Van Syckel, 10 Bosw. 694; Heartt v. Corning, supra, 1 Edw., 417; 2 Edw., 1.)

The evidence of the plaintiff, as to what N. F. Cunningham told him about the Seltzer settlement, was improperly admitted. (Worrell v. Parmelee, 1 Comst., 521; Bristol v. Dann, 12 Wend., 142; Babbin v. Healey, 36 How., 346; Peck v. York, 47 Barb., 131; Purchase v. Matteson, 2 Robt., 91; Alexander v. Mahon, 11 Johns., 185; Jones v. Hurlburt, 39 Barb., 406; Carpenter v. Ward, 30 N.Y. 243; Plato v. Reynolds, 27 N.Y. 586; Hanna v. McKillip, 49 Barb., 342; Moore v. Meacham, 6 Seld., 207; Kimball v. Huntington, 10 Wend., 675; Booth v. Swezey, 4 Seld., 276; Tousley v. Barry, 16 N.Y. 497.)

The referee erred in allowing the plaintiff interest (nearly half of the amount of the judgment) on the balance found against defendant. The plaintiff had taken into his hands assets abundantly sufficient, as was supposed by both, to pay everything, and the defendant had no notice to the contrary

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until suit brought. He could not tell what to pay, for he had no notice what was due, or that anything was. (Kane v Smith, 12 Johns., 156; Turner v. Burkinshaw, Law Rep. 2 Chan. App., 486; Robinson v. Insurance Co., 10 Abb. N. S., 186; Esdaile v. Stephenson, 1 Sim. & Stu., 122; Watney v. Wells, Law Rep., 2 Ch. App., 249.)

The individual note of the defendant to the Charleston Bank should have been credited to him in the accounting. (Holmes v. De Camp, 1 John. Rep., 34; Arnold v. Camp, 12 Id., 409; Smith v. Rogers, 17 Id., 340; Bank v. Fletcher, 5 Wend., 85; Sikes v. Works, 6 Gray, 434; Attorney-General v. Bank, 1 Dev. & Batt., 533; Donald v. Posey, 13 Ala., 572; Gridley v. Dole, 4 Comst., 486.)

Charles A. Rapallo, for the respondent, insisted that the plaintiff had furnished a sufficient account to entitle him to call upon the defendant for reimbursement. He cited Dias v. Merle (1 Hoffm. Ch. Pr., 523); Turner v. Curry (5 Beavan, 515); Miller v. Craig (6 Beavan, 463).

The declarations of N. F. Cunningham were properly received. (Harrison v. Parker, 1 Wils., 257.)

The credit claimed by the defendant for the note given by him, and indorsed by the plaintiff to the Charleston Bank, for one-half the firm debt, was properly rejected. (Collyer on Part., § 199; Beak v. Beak, 2 Swanst, 627; Le Page v. McCrea, 1 Wend., 171; Toulmin v. Copland, 3 You. & Col., 643; Hutchinson v. Smith, 5 Jr. Eq. R., 117.)

The absence...

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