
    Abraham H. Cohen, Adm’r, Resp’t, v. Isidore Hymes et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    1. Limitation—Accounting—Code Civ. Pro., § 392.
    Section 392 of the Code has reference to tangible personal property which, has been taken by some one after the death of a testator or intestate, and does not apply to an action by the representatives of a decedent for an accounting by his surviving partners.
    3. Partnership—Accounting—Estoppel.
    In an action by executors of a deceased partner for an accounting, although the defendants deny any indebtedness, and claim that a certain payment was made as a gratuity, the plaintiffs are bound by their evidence that such payment was made under the obligation alleged as an admission of payment, and cannot be heard to object to the allowance of a credit therefor to defendants.
    Appeal from a judgment entered upon the decision of a referee.
    
      Daniel G. Hollins, for app’lts; B. F. Einstein, for resp’t.
   O’Brien, J.

The action was commenced on the 30th of November, 1889, and seeks an accounting from the defendants as surviving partners of plaintiff’s intestate, who died on the 28th of July, 1865.

The plaintiff- was appointed administrator of his estate on the 28th day of July, 1889, and thereafter brought this action. It is admitted by the pleadings that the defendants and one Abraham Cohen, plaintiff’s intestate, were co-partners in business in this city, for some time prior to 1865, under the firm name of Hymes Brothers & Company; that the defendants have not paid over any money or property to the plaintiff, as administrator, and though they deny that no account was rendered, the evidence shows that they refused to render an account, and they neither claim nor prove that they ever rendered an account to plaintiff or to any one else.

The plaintiff insists that the intestate was entitled to an interest in the firm equal to one-third of the assets, and upon the trial the defendants relied for their defense upon the contention that at the time of the death of Mr. Cohen the partnership had no surplus; that the liabilities were equal to, if they did not exceed, the assets; that, therefore, the intestate was not entitled to anything, and that his only interest in the firm was to the extent of one-third of the net profits, which had already been withdrawn prior to his death, except some small amount which thereafter had been paid over to his widow and used for her support and that of the plaintiff.

It is unnecessary for us to recite all the evidence upon which tlie judgment is supported. As said, the co-partnership was admitted, and considering the number of years that have elapsed, and the difficulty, if not impossibility, of giving better evidence, the plaintiffs made out a sufficient prima facie case, which, in the absence of rebutting testimony, and the unexplained absence of the books of the defendant, justified the conclusions of the referee.

It may well be that the testimony of the plaintiff was not as strong or satisfactory as wc could wish, but under the circumstances it was all that could be expected, after the lapse of years and the situation of the plaintiff, and those whom he represented. There was sufficient to call out from the defendants the best . evidence in their possession, to rebut .the inferences which naturally arose from such testimony as the plaintiff was able to produce. To support plaintiff’s theory as to the amount which actually stood to the credit of the intestate at the time of his death,, we have the payment by the defendants oi $4,000 to the daughter of the intestate, the letter written by one of the defendants, Isidore Hymes, to the plaintiff, the efforts made to obtain from the plaintiff a release, and these supplemented by the testimony of three different witnesses, were sufficient to justify the conclusion reached by the referee as to the amount and value of the intestate’s interest in the firm at, the time of his death. There remain, however, two questions upon which reliance has been, placed upon, this appeal.

The first and most serious relates to the defense interposed of the Statute of Limitations. It is insisted that § 392 of the Code applies, and that in accordance therewith, although letters were not in fact issued to the plaintiff until the 20th day of October, 1889, these must be deemed, for the Durpose of computing the time in connection with the Statute of Limitations, to have been issued within six yeais after the death of the intestate, that is, as early as the 26th day of July, 1871, after which date more than eighteen years had elapsed before the commencement of this action.

Section 392 of the Code reads as follows: ;; For the purpose of computing the time within which an action must be commenced in a court of the state, by an executor or administrator, to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration ; or to recover damages for taking, detaining or injuring personal property within the same period; the letters are deemed, to have been issued within six years after the death of the testator or intestate."

Prior to the enactment of this section of the Code, the authorities in this state, following the case of Bucklin v. Ford, 5 Barb., 393, held that the action could not be maintained until there is a person in being capable of suing.

As stated in Sandford v Sandford, 62 N. Y., 554, the term, “ The cause of action includes not only the right proper, but the existence of a person by or against whom process can issue. A cause of action cannot accrue or exist, unless there is. a person in esse against whom an action can be brought, and the right of action enforced.” There is ample authority therefore for the proposition that prior to the enactment of § 392 of the Code the statute of limitations commenced to run only from the grant of letters. It is insisted, however, that this section has produced a change and under it the action is barred.

It remains, therefore, to consider whether the section applies to an action such as this, brought by the representatives of a deceased within two years after letters were granted, but more than eighteen years after the six years from the death of the intestate, which is the period fixed by § 392 for the purpose of computing the time in cases falling within that section. As shown by the reviser’s notes (See Throop’s Code, § 392.) the purpose undoubtedly was of limiting the operation of the rule laid down in Bucklin v. Ford, supra. As therein said, “ It is well known that where there is no will, and the property left by the decedent is small in amount, the surviving relatives, especially in the rural districts, frequently distribute the effects by mutual agreement, without incurring the expense and trouble of procuring administration. Generally -such distribution is made upon equitable principles; and the section is so framed as to save the few cases where the statute of limitations should not cure the irregularity.”

I think it reasonably free from doubt, upon reading the reviser’s notes, and the language of the section itself, that while it is true that it limits the rule as laid down in the case of Bucklin v. Ford, it does not go to the extent of barring a right of action such as the one here involved. The section has reference to actions, as its language clearly indicates, to recover personal property taken after the death of a testator or intestate and before the issuing of letters testamentary.” Thus actions in regard to real estate and other actions, except to recover personal property or to recover damages for its taking, are left in the same position as they were prior to the Code. The section evidently has reference to tangible personal property, which has been taken by some one after the death of a testator or intestate.

We do not assent to the view that the surviving partners were trustees for the representatives of the deceased partner, and that, therefore, the statute would not apply.

In Williams v. Whedon, 109 N. Y., 333; 15 St. Rep., 265, it was said that “the surviving members become the legal owners of the assets of the firm, and do not take such assets as trustees.” However, it is unnecessary for us, in order to hold that § 392 does not apply, to conclude that the surviving partners are trustees. As we have already said, prior to the enactment of that section, under the authorities in this state, the time when the statute would commence to run would be determined by the grant of letters, and that inasmuch as “ the section referred to had reference only to actions to recover tangible personal property, or to recover damages” for the taking thereof, or injury thereto, it does not cover an action like the present, brought by the representatives of a deceased person to obtain an accounting from the surviving partner, which, in its nature, is a chose in action. It should be noticed, moreover, that the answer here claims that the six years limitation applies; and inasmuch, even if the statute of limitations applied at all, an action such as this would be covered by the ten years limitation, it was not properly pleaded.

The only remaining question relates to the amount paid to the daughter of the intestate, which it is insisted should have been allowed the defendants as a credit. The receipt of the $4,000 is admitted. The respondent insists that because the defendants denied any indebtedness, and asserted that the money was paid to the daughter as a gratuity, they should not now be allowed a credit therefor as a payment upon an account of an indebtedness which they denied. It seems to us, however, that the plaintiff should be held bound by the admission of payment which his own evidence contains. The testimony to the effect that certain moneys were to be paid to the daughter on her marriage was received for the purpose of showing that the defendants were discharging a legal obligation, and the plaintiff should be held to the position that these moneys were so paid.

In Ledyard v. Bull, 119 N. Y., 62 ; 28 St. Rep., 551, Earl, J., says: “After the death of his father, the defendant, undertook ■ with the assent of his sisters, the only next of kin, to administer upon his estate. He stated an account and distributed the balance, and each of his sisters took and had her share. Although all this was done without letters of administration upon his father’s estate, so far as it went it was binding upon the next of kin. They were the persons beneficially interested in the estate, and they could not take their respective shares of the estate, and then through administration claim and obtain a new distribution, and thus duplicate their shares. In the absence of creditors, an administrator is a mere trustee for the next of kin, charged with the sole duty to collect, convert and distribute the estate among the beneficiaries according to their respective interests.

We are of opinion therefore that the daughter having an interest in this estate, to the extent of one-third, and having been paid $4,000 on account thereof, the same, together with interest thereon, should have been deducted from the amount of the recovery, and hereafter it may be charged by the administrator against the amount given to the said daughter. As so modified we think the judgment should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, J., concur in result.  