
    George E. Lefler, Respondent, v. Theresa Alice Oelrichs and Virginia Vanderbilt, Appellants, Impleaded with Joseph Harvey and Charles S. Neal, Individually and as Administrators with the Will Annexed of Caroline D. Fair, Deceased, Defendants..
    First Department,
    July 10, 1916.
    Infancy — Statute of Limitations — suit to set aside settlements on ground of fraud—repayment of money received — adequate remedy at law.
    Where an infant upon becoming of age acquires knowledge as to alleged fraudulent settlements relating to property in which he claims an interest, the Statute of Limitations begins to run against his right of action and his right to repudiate such settlement.
    Before such an infant upon becoming of age and repudiating payments • under alleged fraudulent settlements during his infancy can maintain a suit, he must repay what he has received.
    Suit by an infant upon becoming of age to obtain an interest in certain real estate. Held, that, under the circumstances, if the plaintiff has any interest in such real estate he has an adequate remedy at law.
    Appeal by the defendants, Theresa Alice Oelriohs and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of June, 1915, resettling a prior order entered in said clerk’s office on the 8th day of June, 1915, which denied then- motion for judgment on the reply herein as frivolous and for an order striking out the said reply as sham.
    Also an appeal by said defendants from a second order, entered in said clerk’s office on the 17th day of June, 1915, resettling an order entered therein on the 8 th day of June, 1915, which denied their motion for judgment on the pleadings herein consisting of an amended complaint, answer and reply.
    
      John M. Bowers, for the appellants.
    
      Philip Carpenter, for the respondent.
   McLaughlin, J.:

The appellants appeal from two orders, one denying their motion for judgment on the pleadings and the other denying their motion for judgment on the reply as frivolous and to strike out the same.

The action is brought to procure a judgment decreeing that the plaintiff is entitled to an undivided one-forty-second part of certain real estate in the city of New York, and also to a one-forty-second part of all the property, both real and personal, which Charles L. Fair and Caroline D. Fair, his wife, owned at the time of their respective deaths, and for an accounting. Mr. and Mrs. Fair were killed in an automobile accident in France on the 14th of August, 1902. As soon as knowledge of their deaths had been ascertained in this country, defendants Harvey and Neal, who were, apparently, managing their property in California, telegraphed to the mother of Mrs. Fair—the grandmother of the plaintiff—Mrs. Nelson, who at the time was in New Jersey, informing her of the deaths and asking her to at once come to California. She immediately started, being accompanied by her two sons, both of whom were over twenty-one years of age. A few days after their arrival in San Francisco, and on August 27, 1902, Mrs. Nelson and the two sons, in consideration of the payment of $125,000 to Mrs. Nelson, agreed to execute papers necessary to convey and transfer their interest, if any, in the estate, both real and personal, of both of the Fairs to the appellants, and within a few days thereafter they did, in fact, execute and deliver the same. Shortly after the payment was made to Mrs. Nelson she and her two sons returned to their home in New Jersey. In February, 1903, Mrs. Nelson and all of her adult children and grandchildren brought an action in the Supreme Court of the' State of New York to set aside these transfers on the ground they were procured by fraud and misrepresentation. Answers were interposed by the appellants which, among other things, denied the allegations of fraud and alleged the validity of the transfers. The issue thus raised remained undetermined until about March 16,1904, when an agreement between the parties was entered into which provided that in consideration to the payment to Mrs. Nelson of $267,500, a judgment should be entered by consent adjudging and decreeing that both Mr. and Mrs. Fair were, at the time of their deaths, residents of California; that Mr. Fair survived Mrs. Fair; that the complaint should be dismissed on the merits; and that Mrs. Nelson and her adult children and grandchildren should execute an agreement ratifying and confirming the settlement theretofore made in California. A referee was appointed in the action and upon his report judgment was entered on the 11th of May, 1904, in pursuance of the agreement. The plaintiff, at this time, was a few months under twenty-one years of age. He was not a party to the action, nor was he represented by guardian, but two days after the judgment was entered he applied to the Surrogate’s Court of Union county, N. J., for the appointment of a guardian and set up in his petition that he was possessed of property in that State of the value of $6,540, moneys due him as one of the heirs at law of Mrs. Fair. A guardian was appointed and thereafter, upon the execution of the agreement by the plaintiffs in the action and the guardian for this plaintiff and three other infant grandchildren, the amount agreed upon was paid to Mrs. Nelson. The guardian was present at the time the payment was made and Mrs. Nelson, out of the moneys received by her, paid to him $6,715.37, which included $1,503.19, the share or interest which this plaintiff had in a legacy under the will of Mrs. Fair. On the 23d of January, 1905-—the plaintiff then having become twenty-one years of age — the guardian paid to him the amount received from Mrs. Nelson, less expenses, and he thereupon executed a general release and the guardian was discharged. Nothing further was done by the plaintiff until the 11th of March, 1913, when this action was brought for the purpose before stated.

The complaint alleges that the agreement made in California was fraudulent and void. The fraud stated consisted in representations made to the effect that Mr. Fair survived Mrs. Fair; that they were both residents of California at the time of their deaths and under the statutes of that State all the property of both of them belonged to the heirs at law and next of kin of Mr. Fair, whereas, in fact, Mrs. Fair survived Mr. Fair; that they were not residents of California, but of New York, and by reason of this fraud, all of the property received by the appellants from, the Fairs’ estates was impressed with a trust for the benefit of this plaintiff, to the extent of one-forty-second part thereof.

The complaint also alleged that as to the fraud stated the plaintiff did not learn of it until February, 1913, less than one month before the action was commenced.

There are no allegations in the complaint to the effect that the agreement made after the commencement of the New York action, and to which this plaintiff’s guardian was a party, is fraudulent, nor is any reference made to it in the complaint.

The answer put in issue the allegations of fraud and set up affirmatively the execution of the California agreement, the bringing of the Néw York action and the agreement settling the same by the payment of $267,500 to Mrs. Nelson, the entry of judgment, the approval of the settlement by plaintiff’s guardian and the payment by him to the plaintiff in pursuance thereof. The answer also set up the six and ten-year Statute of Limitations.

To the affirmative defenses the plaintiff was compelled by an order of the court to reply. In the reply many of the affirmative allegations of the defenses are denied, but he admitted the appointment of the guardian, the amount paid by the guardian to him, which he alleged was a gift from Mrs. Nelson, his grandmother, except his interest in the legacy referred to; and alleged that the guardian was not authorized by law to join in the settlement in the New York action; that the plaintiffs in that action were induced to enter into the agreement and settlement by false and fraudulent representations made by the appellants that Mr. and Mrs. Fair were domiciled in California at the time of their deaths; and that Mr. Fair survived Mrs. Fair as set forth in the complaint.

Upon the complaint, answer and reply the appellants moved for judgment upon the pleadings. They also moved for judgment on the reply as frivolous and to strike out the same as sham. Both motions were denied and the appeal is from each order.

It is quite difficult to determine from pleadings as voluminous as these whether there is an issue raised. It is true there are in the reply many denials of affirmative allegations in the answer, but they consist largely, if not entirely, of legal conclusions which add nothing to the pleading or matters of public record, of which the plaintiff had actual or presumptive knowledge which may be stricken out as sham. The action is in equity. The plaintiff’s claim is that in September, 1902, the appellants illegally secured possession of the entire estate of the Fairs and have ever since retained the same. He repudiates and claims he is not bound by the settlement made with his grandmother in California or that made in Hew York in which his guardian participated. He became of age on the 25th of December, 1904, and if the settlements were not binding upon him it is immaterial whether fraud were practiced by appellants in bringing about • the same since, as indicated, he was entitled to sue when he became of age. He then had full knowledge of the settlements and the statute then commenced to run, and at the time of the commencement of the action was a bar to its maintenance. (Mills v. Mills, 115 N. Y. 80; Hoyt v. Sprague, 103 U. S. 613.)

Hot only this, but the money which the plaintiff received through his guardian from his grandmother, either was or was not paid by her in fulfillment of her settlement agreement. He says it was not. If so, he had the right to repudiate the settlement when he became of age and the Statute of Limitations in that case, likewise, prevents the maintenance of the action. If the payment were made in pursuance of and as a part of the settlement, he might, when he became of age, repudiate it, but before he could maintain an action he had to repay what he had received. This he has not done and that, as well as the Statute of Limitations, prevents the maintenance of the action.

As to the real estate if the plaintiff has any interest therein he clearly has an adequate remedy at law.

My conclusion is that the appellants were entitled to have their motion to strike out the reply as frivolous granted and also to have their motion for judgment on the pleadings granted.

Each order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and each motion granted, with ten dollars costs.

Clarke, P. J., Scott, Dowling and Davis, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements, and motions granted, with ten dollars costs.  