Smith v. Town of Greenwich

• Decision Date: 30 April 1895
• Parties: SMITH et al. v. TOWN OF GREENWICH.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 372

40 N.E. 503

SMITH et al.

v.TOWN OF GREENWICH.

Court of Appeals of New York.

April 30, 1895.

On reargument. Denied.

For original opinion, see 40 N. E. 254.

*375FINCH, J.

*372A motion for a reargument is made in this case, accompanied with elaborate explanations, entirely immaterial to the legal question decided, and of consequence only to a wrong view of the opinion rendered. The point involved and decided was wholly one of pleading. We held, in affirmance of the courts below, that the cause of action pleaded as one and single was upon an implied contract to pay the interest upon a loan to the town; that to such cause of action the statute of limitations was a complete and perfect defense; that the demurrer was therefore properly overruled, and judgment for the defendant inevitable, unless barred by some other possible proceedings, of which the record gave no knowledge. I urged as reasons for that construction the form and character of the complaint itself, pointing out that it followed closely the essential facts needed to sustain an action on an implied contract, as disclosed*373in the Hoag Case, 30 N. E. 842, and unessential to an action on the bonds themselves; that two distinct classes or groups of bonds, creating distinct grounds of action, were enveloped in the complaint, and which were those issued illegally, in form, before the amendment of the statute, and those issued without defect thereafter; that an action on an implied contract would justify a single action on both classes, while an action on the bonds would not; and that on the hearing an offer was made by the defendant, concurred in by the court, that if plaintiff would stipulate to stand on his bonds alone, or upon a cause of action to which the pleaded statute of limitations was no defense, the demurrer should be sustained, and the trial proceed, but the plaintiff refused. I have not the least doubt, on that state of the case, that the judgment rendered was correct. To have denied the defendant the protection of his plea would have been almost inexcusable. That is all there is of the question presented, and of the decision made; and the sole pertinent commentary upon it contained in the moving papers, outside of a persistent claim that the complaint was not ambiguous, although two different constructions have been clashing along the whole line of trial and appeal, appears to be that the assertion of defendant's brief as to what occurred in the offer of a stipulation was denied on the argument. I took more than usual pains to be sure of the fact asserted, but it is not necessary or seemly to dispute about that, for on this motion the...