
    AACHEN & MUNICH FIRE INS. CO. v. GUARANTY TRUST CO. OF NEW YORK.
    District Court, S. D. New York.
    July 1, 1926.
    1. Banks and banking «^ISSÍ/á — Direction to bank to remit money to Germany “to-day” held to require remittance within reasonable time only.
    Plaintiff’s direction to a bank to remit money to Germany “to-day” held to require such remittance only within a reasonable time.
    2. Judgment <@=>181 — When reasonable time for performance of contract expired, starting running of statute, held substantial issue, precluding summary judgment (Civil Practice, Act N. Y. §§ 27, 28).
    Under Civil Practice Act N. Y. §§ 27, 28, providing that time of disability of party to sue because of his being an alien citizen or subject of a country at war with the United States shall be excluded in computing time under statute of limitations, but that the disability must exist when the right of action accrued, where a contract requiring defendant to remit money to Germany within a reasonable time was made March 26, 1917, whether a reasonable time had elapsed before April 6, when declaration of war made the remittance impossible and right of action had in consequence accrued for breach of contract held a substantial issue under the facts and circumstances which may be shown, precluding summary judgment.
    At Law. Action by the Aachen & Munich Fire Insurance Company against the Guaranty Trust Company of New York. On motion by plaintiff for summary judgment on the pleadings.
    Denied.
    See, also, 24 F.(2d) 465; 56 App. D. C. 314, 13 F.(2d) 286.
    Hartwell Cabell, of New York City (Milton B. Ignatius and Joseph S. Catalano, both of New York City, of counsel), for plaintiff.
    Stetson, Jennings, Russell & Davis, of New York City (William C. Cannon and David E. Hudson, both of New York City, of counsel), for defendant.
   WINSLOW, District Judge.

This is a motion made by plaintiff for summary judgment on the pleadings. The action was brought to recover the sum of $43,137.72, with interest, from March 27, 1917. The plaintiff is an insurance corporation; its main office being at Aachen, Germany. Pri- or to the war, it conducted business also in the United States.

On March 26, 1917, plaintiff’s manager in the United States asked the defendant to remit, that .day, to the plaintiff, at Aachen, Germany, 250,000 marks at .69, or better, and charge the equivalent against the special foreign account of the plaintiff. Thereupon the defendant issued a memorandum to the plaintiff, showing $43,125 as the equivalent of marks ordered to be transmitted, and $12.72, wireless expense. Upon the issuance of a memorandum to the plaintiff, the defendant debited plaintiff’s account with $43,-137.72.

A state of war was declared between the United States and Germany on April 6,1917.

It appears that the defendant, upon receiving instructions to transmit the marks, attempted to send a wireless message to its correspondent in Berlin, but the message was intercepted by the United States authorities, who had taken over the radio station. The message was never actually transmitted. A written confirmation of the wireless message was also placed in the mails by the defendant, but that also was intercepted by the United States authorities. Neither the wireless message, nor its mail confirmation, ever reached its destination.

On June 4, 1918, the defendant, pursuant to a demand, paid over to the Alien Property Custodian $36,019.70, being tbe balance of the plaintiff’s deposit account with tbe defendant after tbe deduction of tbe sum of $43,137.72, which tbe parties, at that time, assumed had been transmitted to Germany.

On June 24, 1918, defendant advised the United States manager of tbe plaintiff that it bad turned over to tbe Alien Property Custodian tbe sum aforesaid as tbe balance of the special foreign account of tbe plaintiff; this being tbe balance then remaining after tbe deduction of $43,137.72 thought to be transmitted.

It was not, however, until October 13, 1922, according to tbe plaintiff, that tbe facts became known to tbe plaintiff and its United States manager, following a correspondence instituted by tbe plaintiff in or about July, 1922, in the course of tbe plaintiff attempting to cheek its former assets in the United -States. Thereupon, under date of November 23, 1922, tbe plaintiff wrote to tbe defendant :

“We wish no remittance to be made to us from your side and as tbe order to effect tbe transfer in question appears to be still open, we beg to formally withdraw same.”

Thereupon plaintiff made demand upon tbe defendant, and, upon its denial, this action was instituted.

Tbe facts recited appear in the pleadings and affidavits submitted on tbe motion. The defendant, after denying tbe alleged contracts, admitting, however, that it debited tbe plaintiff’s account in the sum specified and ádmitting that said sum bad not been transmitted by it to tbe plaintiff in Germany, further sets up a number of affirmative defenses.

It is quite manifest that, if any one of these affirmative defenses raises a genuine and substantial issue, a summary judgment is quite improper.

One of tbe affirmative defenses is that tbe cause of action is barred by tbe statute of limitations.

Tbe action is based on an alleged breach of contract. Tbe Civil Practice Act provides (section 48) that certain actions “must be commenced within six years after tbe cause of action has accrued,” including “an action upon a contract obligation or liability express or implied, except a judgment or sealed instrument. * * * ”

Exhibit A, of tbe affidavit filed in support of this motion, alleges a contract to transfer a foreign credit “to-day by wireless.” “To-day” was March 26,1917. Tbe contract, if literally and strictly interpreted, was breached on March 26th. I think, however, that tbe better interpretation is.that, while tbe word was “to-day,” tbe transmission, within the contemplation of tbe parties, must have bad regard to tbe method employed and was to be within a reasonable time. As to what is a reasonable time in a given case is a question of fact for tbe jury.

Tbe action was not commenced until February 9, 1924, nearly seven years after tbe transaction in question.

What was tbe effect of war on tbe rights of tbe parties? Section 27 of tbe Civil Practice Act clearly recognizes that a person may be under a disability to sue by reason of tbe existence of a state of war.

“Sec. 27. Effect of War on Bight of Alien. Where a person is disabled to sue in tbe courts of tbe state by reason of either party being an alien subject or citizen of a country at "war with the United States, tbe time of tbe continuance of tbe disability is not a part of tbe time limited for tbe commencement of tbe action.”

Tbe limitation of the war disability is set forth in section 28 of tbe Civil Practice Act.

“Sec. 28. Disability Must Exist When Bight Accrues. A person cannot , avail himself of a disability unless it existed when bis right of action or of entry accrued.”

Tbe cause of action accrued on March 26th, or within a reasonable time thereafter. If the period from March 26, 1917, to April 6, 1917, when a state of war was declared, was a reasonable time, tbe cause of action then accrued and tbe statute began to run. In either event, tbe defense of tbe statute of limitations raises a, substantial issue.

It is therefore unnecessary to consider, for tbe purposes of'this motion, any of the other questions involved.

Motion for summary judgment denied.  