
    Oliver Downs, Resp’t, v. Maria Wells and another, Administrators of the Estate of Benjamin F. Wells, Deceased, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    Statute of limitations—Recoveby babbbd by the lapse op six yeabs.
    One Tuthill gave his note for $112.50 to the intestate and four others, one of whom was the plaintiff. The payment was made to Wells in 1869, and the plaintiff had notice of this fact. Wells died in 1871; this action was begun in 1885. Held, that as no trust under which Wells received this money was established, that the six years limitation, enlarged eighteen months by Wells’ death, barred the plaintiff’s claim.
    This action was brought against the administrators of the estate of .Benjamin F. Wells, deceased, to recover $22.50, received by the intestate in part, and part by the defendants, for the plaintiff. It appeared upon the trial, that some time during the civil war, eigiit persons clubbed together for mutual protection against the "draft;” that plaintiff and said Benjamin F. Wells were two of the club of eight; that three of said eight were drafted; that $900 was the sum the said three drafted members had to pay, which sum, equalized in the said club of eight, made $112.50 the sum for each member to pay; one member, Phineas Tuthill, failed to pay his proportion, for the alleged reason that he had not the money; that five members of said club paid said Tuthill’s proportion, viz., $112.50, each of the five paying $22.50; that said Tuthill gave his note therefor, and was to pay as soon as he could; that plaintiff and said Benjamin F. Wells were two of the said five. It further appeared that it was agreed by and between said five, that Benjamin F. Wells should hold said note and receive the interest thereon and installments of the principal in such sums as said Tuthill might find it convenient to pay, and it was also agreed between plaintiff and said Benjamin F. Wells, that plaintiff was not to receive any of his till the entire sum of $22.50, with interest was paid to said Wells, when he was to inform plaintiff and pay over the amount received. It also further appeared that at the death of said Wells he had not received the entire amount of said note with interest, and that subsequently his administrators collected the balance due on said note and surrendered the same to said Tuthill. And that said defendants assumed the undertaking of their intestate, and promised plaintiff to carry out and fulfill the agreement which the intestate left unfinished and uncompleted at his death; and that plaintiff did not learn of the payment of the note in full till about three years before this action was commenced, and then he learned it from Tuthill and not from defendants.
    
      Daniel W. Reese, for resp’t; Payne & Benjamin, for app’lts.
   Pratt, J.

The testimony of Taft, one of the plaintiff's witnesses, shows that Downs had notice o£ the payment made to B. F. Wells in 1869. The money due him at that time was offered him, and he refused to take it. The Statute of Limitations began to run against that portion of the claim from that time, and it was barred by 1876.

There is no evidence that makes this a case of trust, and the six-year term applies, enlarged eighteen months by the death of the debtor.

There is no evidence that any portion of the $22.50 was paid to the defendants; it was all paid to B. F. Wells. The plaintiff knew of his death and that administrators were appointed, and could not, by failing to inquire whether the remaining $3.40 had been paid, keep his claim against the estate alive indefinitely. Not more than seven years and "a half could be allowed him within which to bring his suit. The whole claim was, therefore, barred by the statute, and judgment should have been ordered for defendants. Judgment reversed, new trial ordered, costs of appeal allowed to defendant to abide the event.

Barnard, P. J., and Pratt, J., concur.  